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 Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a), because the specification, while being enabling for [0034] a material testing system configured for strength testing (e.g. compression, tension, shear, bend, deflection, tearing, peel adhesive bond), torsional testing, compressive testing and tensile testing performed statically or dynamically on solid materials using [0038] a force or movement actuator and measured with a mechanical force sensor, the specification does not apply to all material testing machines (e.g. medical, chemical material analysis, electromagnetic property testing to name a few of all testing of all materials using all forms of controlled test actuators to act on any material tested and measure using any known or yet to be developed sensor.
Claims 1 & 11 and its dependent claims are rejected under 35 U.S.C. 112(a), as failing to comply with the scope of enablement requirement. In Applicant' s case the breadth of the claims extends beyond the disclosure of strength testing (e.g. compression, tension, shear, bend, deflection, tearing, peel adhesive bond), torsional testing, compressive testing and tensile testing performed statically or dynamically on solid materials using [0038] a force or movement actuator and measured with a mechanical force sensor.
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is “undue.” In this case, the relevant Wand factors Examiner has considered are :
2164.01(a) Undue Experimentation Factors [R-01.2024]
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
OR ) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
The disclosure does not provide additional working examples or indication of any other type of material testing broader than [0034] strength testing (e.g. compression, tension, shear, bend, deflection, tearing, peel adhesive bond), torsional testing, compressive testing and tensile testing performed statically or dynamically on solid materials using [0038] a force or movement actuator and measured with a mechanical force sensor. The inventor has reduced to practice material strength testing (e.g. compression, tension, shear, bend, deflection, tearing, peel adhesive bond), torsional testing, compressive testing and tensile testing performed statically or dynamically on solid materials using [0038] a force or movement actuator and measured with a mechanical force sensor. Absence of disclosure all material testing devices of all materials (i.e. liquid and gas included) testing using any actuator (i.e. laser and electromagnetic) and measured by any sensor (i.e. optical and electromagnetic) places on the public the burden of implementing the full-scope of the claimed but not disclosed invention.
Consistent with office policy, Examiner has weighed all the evidence for and against enablement of this invention and has concluded based on guidance provided by the MPEP and case law (including the Wands factors) that there is not enough evidence in favor of the scope of the enablement of this invention.
Applicant may submit factual affidavits under 37 CFR 1.132 or cite references to show what one skilled in the art knew at the time of filing the application. A declaration or affidavit is, itself, evidence that must be considered. The weight to give a declaration or affidavit will depend upon the amount of factual evidence the declaration or affidavit contains to support the conclusion of enablement. In re Buchner, 929 F.2d 660, 661, 18 USPQ2d 1331, 1332 (Fed. Cir. 1991) (“expert' s opinion on the ultimate legal conclusion must be supported by something more than a conclusory statement”); cf. In re Alton, 76 F.3d 1168, 1174, 37 USPQ2d 1578, 1583 (Fed. Cir. 1996) (declarations relating to the written description requirement should have been considered)”.
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.
Claims 1-20 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 regards as the invention.
Claims 1 & 11 recite a similar limitation of a generating a document (e.g. “ generate a document discussing one or more aspects of the setup, execution, or result analysis of the test method using one or more portions of the recording”), where it is unclear if the requirement is to generate a particular formatted document/report with a particular structure on a processor or does generating a document include generating status messages, alerts or displayed test operation and/or results by the processor.
All dependent claims are rejected for their dependence on a rejected base claim.
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.
Claims 1-2 & 4-20 are rejected under 35 U.S.C. 103 as being unpatentable over Frenz (US 20150095717: “Frenz”) and incorporated by reference Pillai (US20100077260: “Pillai”) in view of Grumski (US 11061041; “Grumski”).
Claim 1. Frenz discloses a material testing system (Fig. 20), comprising: a material testing machine (Fig. 20: 130), comprising a test sensor (1110 & 1112), a test actuator (1106 & 1114), and a test controller (134) configured to control the test actuator (1106 & 1114); a user interface (1140 & 1144); and a computing device (1120) configured for communication with the user interface (1140 & 1144) and the material testing machine (Fig. 20: 130), the computing device (1120) comprising processing circuitry (1126) configured to: capture a recording of an output of the user interface [0101: The GUI can initiate capture or recording of each of the various types of communications with selection of a corresponding button or the like by the user on the GUI] & [0066 records and documents image of test] during setup, execution, or result analysis of a test method that uses the material testing machine (130)[0075], and discussing one or more aspects of the setup, execution [0077 with incorporated Pillai reference], or result analysis of the test method using one or more portions of the recording [0056: the user interface 10 can also comprise information messages related to periodic updates concerning the test being conducted on the testing device. Information message 12B is exemplary. In this example, the information message 12B conveys that the test device "Frame #1" has completed 50% of the test being conducted thereon and is at 600 cycles through the testing procedure] & [0066 records and documents image of test]. Frenz does not explicitly disclose:
generating a document discussing one or more aspects of the setup, execution or result analysis of the test method.
Grumski teaches a system for testing a material, including: a testing device configured to apply at least one physical test to a piece of material comprising material properties, the testing device comprising a plurality of sensors configured to measure parameters of the material subjected to the at least one physical test [Abstract]. Grumski further teaches generating a document (306) discussing one or more aspects of the setup, execution or result analysis of the test method [Col. 3 lines 5-7: the system further includes report generating means for generating a report based on test data comprising the at least one material property] & [Col. 6 lines 25-30: report generation for regulatory compliance or other requirements are possible].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Grumski’s formal report and document production with Frenz’s analysis and alert processing because a compliance testing document provides a consistent and accurate reporting of testing results [Grumski Col. 1 lines 24-35].
Claim 2. Dependent on the system of claim 1. Frenz further discloses the user interface (1140 & 1144); comprises a display screen (1142) and a speaker [0101], the output of the user interface (1140 & 1144) comprising one or more graphical outputs of the display screen (1142) [0088].
Claim 4. Dependent on the system of claim 1, Frenz further discloses through incorporation of Pillai the document comprises an operational qualification (OQ) result [Pillai 0013: The method includes operating a workflow program on a computer with a graphical user interface to configure a test procedure using connected graphical icons representative of elements of the test procedure; operating the workflow program to generate a textual output data in a form readable by a human representing the test procedure; and accessing the textual output data to initiate a selected module of the plurality of modules based on a portion of the textual output, the module configured to control a controllable element operably coupled to a test specimen]. Frenz does not explicitly disclose:
generating a document discussing one or more aspects of the result analysis of the test method.
Grumski teaches a system for testing a material, including: a testing device configured to apply at least one physical test to a piece of material comprising material properties, the testing device comprising a plurality of sensors configured to measure parameters of the material subjected to the at least one physical test [Abstract]. Grumski further teaches generating a document (306) discussing one or more aspects of the result analysis of the test method [Col. 3 lines 5-7: the system further includes report generating means for generating a report based on test data comprising the at least one material property] & [Col. 6 lines 25-30: report generation for regulatory compliance or other requirements are possible].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Grumski’s formal report and document production with Frenz’s analysis and alert processing because a compliance testing document provides a consistent and accurate reporting of testing results [Grumski Col. 1 lines 24-35].
Claim 5. Dependent on the system of claim 1. Frenz further discloses the document includes or references the one or more portions of the recording [0078: Conditions interact with conditional logic so that a rule may establish a condition where the associated action is performed only if that condition is true or otherwise met. There can be single or multiple conditions for a step in the testing procedure. The steps make up the testing procedure, and each step can contain any number of actions and associated conditions. In the test procedure creation of environment, signals or variables can be monitored and compared against defined limits. Alerts can then be enabled such that on occurrence during testing, the user receives an indication that the monitored signal or variable has exceeded the bounds set].
Claim 6. Dependent on the system of claim 1. Frenz further discloses the recording is captured via a camera [0066].
Claim 7. Dependent on the system of claim 1. Frenz further discloses through incorporation of Pillai the recording comprises a first recording [Pillai first cycle], the document comprises a first document [Piilai 0099-0100: The stable cycle is determined by comparing the relative values of two variables. When the comparison between the values is consistent within a defined percentage for a defined number of cycles, a stable cycle is achieved. The cycle number at which the stability is achieved is stored in a result cycle variable. The next activity in the procedure cannot occur until the stable cycle is established], and the processing circuitry (1126) is further configured to: perform a comparison of the first recording [Pillai first cycle], and a second recording [Pillai second cycle 0099], identify one or more differences between the first recording [Pillai first cycle], and the second recording [Pillai second cycle 0099]; generate a second document discussing the one or more differences between the first recording [Pillai first cycle], and the second recording [Pillai second cycle 0099] [Pillai 0100-0101].
Claim 8. Dependent on the system of claim 7. Frenz further discloses the output (Fig. 23) comprises a first output (130-1) the user interface (1140 & 1144); comprises a first user interface (1140 & 1144), the computing device (1120) comprises a first computing device (1120), the material testing machine (130) comprises a first material testing machine (130-1), and the test method comprises a first test method [Pillai 0102 first cycle], the second recording [Pillai 0102: second cycle] being of a second output (130-2 output) of a second user interface (1140 & 1144) of a second computing device (130-2) that is in communication with a second material testing machine (130-2), the second output (130-2 output) being output during setup execution [Pillai 0100-0102] or of a second test method that uses the second material testing machine [Pillai 0100-0102].
Claim 9. Dependent on the system of claim 8. Frenz further discloses through incorporation of Pillai the one or more differences between the first recording [Pillai 0102 first cycle] and the second recording [Pillai 0102 second cycle] comprise one or more differences between setup, execution, of the first test method and setup, execution [Piilai 0099-0100: The stable cycle is determined by comparing the relative values of two variables. When the comparison between the values is consistent within a defined percentage for a defined number of cycles, a stable cycle is achieved. The cycle number at which the stability is achieved is stored in a result cycle variable. The next activity in the procedure cannot occur until the stable cycle is established].
Claim 10. Dependent on the system of claim 8. Frenz further discloses through incorporation of Pillai the one or more differences between the first recording [Pillai 0102 first cycle] and the second recording [Pillai 0102 second cycle] comprise one or more differences between one or more first parameters of the first test method evident in the first recording [Pillai 0102 first cycle] and one or more second parameters of the second test method [Pillai 0102 second cycle] evident in the second recording [Piilai 0099-0100: The stable cycle is determined by comparing the relative values of two variables. When the comparison between the values is consistent within a defined percentage for a defined number of cycles, a stable cycle is achieved. The cycle number at which the stability is achieved is stored in a result cycle variable. The next activity in the procedure cannot occur until the stable cycle is established].
Claim 11. Frenz further discloses through incorporation of Pillai [0077] a material testing system (Fig. 20), comprising: a first material testing machine (Figs. 20-21: 130-1), comprising a test sensor (1110 & 1112), a test actuator (1106 & 1114), and a test controller (134) configured to control the test actuator (1106 & 1114); and a computing device (1120), the computing device (1120) comprising processing circuitry (1126) configured to: perform a comparison between a first test method [Pillai 0094: reference values] and a second test method [Pillai 0093-0094] , the first test method [Pillai 0094: reference values] being conducted on a first specimen using the first material testing machine (130-1), and the second test method [Pillai 0093-0094] being conducted on the first specimen or a second specimen using the first material testing machine (130-1) or a second material testing machine (130-2), identify one or more differences between the first test method and the second test method [Pillai 0093-0094], and generate a result discussing the one or more differences between the first test method and the second test method [Piilai 0095: Reference variable Specifies the cycle at which the comparison begins. This property can be set by typing a number or by referencing a variable. Reference Value Specifies a variable to compare to the Formula variable. Formula Specifies a variable to compare to the Reference Value variable. Result Cycle Specifies a variable to use to store the cycle information that caused the change. The list shows only variables that have a dimension of "count."]. Frenz does not explicitly disclose:
generating a document discussing one or more aspects of the result analysis of the test method.
Grumski teaches a system for testing a material, including: a testing device configured to apply at least one physical test to a piece of material comprising material properties, the testing device comprising a plurality of sensors configured to measure parameters of the material subjected to the at least one physical test [Abstract]. Grumski further teaches generating a document (306) discussing one or more aspects of the result analysis of the test method [Col. 3 lines 5-7: the system further includes report generating means for generating a report based on test data comprising the at least one material property] & [Col. 6 lines 25-30: report generation for regulatory compliance or other requirements are possible].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Grumski’s formal report and document production with Frenz’s analysis and alert processing because a compliance testing document provides a consistent and accurate reporting of testing results [Grumski Col. 1 lines 24-35].
Claim 12. Dependent on the system of claim 11. Frenz further discloses through incorporation of Pillai [0077] the first test method is defined by one or more first parameters [Pillai 0094: reference variable], the second test method is defined by one or more second parameters [Pillai 0094: measured variable], and the one or more differences between the first test method [Pillai 0094: reference variable], and the second test method [0094: measured variable], comprise one or more differences between the one or more first parameter and the one or more second parameters [Piilai 0094: Reference variable Specifies the cycle at which the comparison begins. This property can be set by typing a number or by referencing a variable. Reference Value Specifies a variable to compare to the Formula variable. Formula Specifies a variable to compare to the Reference Value variable. Result Cycle Specifies a variable to use to store the cycle information that caused the change. The list shows only variables that have a dimension of "count"].
Claim 13. Dependent on the system of claim 11. Frenz further discloses through incorporation of Pillai [0077] the computing device (1120) is in communication with the first material testing machine (130), and the processing circuitry (1126) is further configured to setup the first test method [Pillai 0094: reference variable] execute the first test method or the second test method [Pillai 0094: measured variable], or analyze test results of the first test method or the second test method [Piilai 0094: Reference variable Specifies the cycle at which the comparison begins. This property can be set by typing a number or by referencing a variable. Reference Value Specifies a variable to compare to the Formula variable. Formula Specifies a variable to compare to the Reference Value variable. Result Cycle Specifies a variable to use to store the cycle information that caused the change. The list shows only variables that have a dimension of "count"].
Claim 14. Dependent on the system of claim 11. Frenz further discloses through incorporation of Pillai [0077] a first user interface (1140 & 1144), the processing circuitry (1126) being further configured to: capture a first recording [0093-0094: Pillai reference variable] of a first output of the first user interface (1140 & 1144), execution of the first test method [0093-0094], or analysis of first test results of the first test method, and capture a second recording [0093-0094: Pillai measured compared cycle] of a second output of the first user interface (1140 & 1144) execution of the second test method [0093-0094], wherein performing the comparison between the first test method and the second test method comprises performing the comparison [0093-0094] between the first recording [0093-0094: Pillai reference variable] and the second recording [0093-0094: Pillai measured compared cycle].
Claim 15. Dependent on the system of claim 14. Frenz further discloses the one or more differences between the first recording [0093-0094: Pillai reference variable] and the second recording [0093-0094: Pillai measured comparative variable] and comprise one or more differences between one or more first parameters of the first test method evident in the first recording [0093-0094: Pillai reference variable] and one or more second parameters of the second test method evident in the second recording [0093-0094: Pillai measured comparative variable] [0093-0094].
Claim 16. Dependent on the system of claim 14. Frenz further discloses the first recording [0093-0094: Pillai reference variable] or the second recording [0093-0094: Pillai measured comparative variable] is captured via a screen recorder or a camera [0066].
Claim 17. Dependent on the system of claim 14. Frenz further discloses first user interface (1140 & 1144) comprises a display screen (1142) or a speaker [0101], and the first output comprises one or more graphical outputs [0088] of the display screen [0088].
Claim 18. Dependent on the system of claim 14. Frenz further discloses through incorporation of Pillai the one or more differences between the first recording [Pillai reference variable] and the second recording [Pillai compared cycle] comprises one or more differences between setup, execution, or analysis of the first test method and setup, execution [Piilai 0093-0094: Reference variable Specifies the cycle at which the comparison begins. This property can be set by typing a number or by referencing a variable. Reference Value Specifies a variable to compare to the Formula variable. Formula Specifies a variable to compare to the Reference Value variable. Result Cycle Specifies a variable to use to store the cycle information that caused the change. The list shows only variables that have a dimension of "count"].
Claim 19. Dependent on the system of claim 14. Frenz further discloses the document comprises a first document [0075], and the processing circuitry (1126) is further configured to generate a second document (130)[0075] discussing one or more aspects of the setup, execution, or result analysis of the first test method [0077].
Claim 20. Dependent on the system of claim 19. Frenz further discloses through incorporation of Pillai the second document comprises an installation qualification (IQ) document or operational qualification (OQ) result [Pillai 0013: The method includes operating a workflow program on a computer with a graphical user interface to configure a test procedure using connected graphical icons representative of elements of the test procedure; operating the workflow program to generate a textual output data in a form readable by a human representing the test procedure; and accessing the textual output data to initiate a selected module of the plurality of modules based on a portion of the textual output, the module configured to control a controllable element operably coupled to a test specimen]. Frenz does not explicitly disclose:
generating a document discussing one or more aspects of the result analysis of the test method.
Grumski teaches a system for testing a material, including: a testing device configured to apply at least one physical test to a piece of material comprising material properties, the testing device comprising a plurality of sensors configured to measure parameters of the material subjected to the at least one physical test [Abstract]. Grumski further teaches generating a document (306) discussing one or more aspects of the result analysis of the test method [Col. 3 lines 5-7: the system further includes report generating means for generating a report based on test data comprising the at least one material property] & [Col. 6 lines 25-30: report generation for regulatory compliance or other requirements are possible].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Grumski’s formal report and document production with Frenz’s analysis and alert processing because a compliance testing document provides a consistent and accurate reporting of testing results [Grumski Col. 1 lines 24-35].
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Frenz and incorporated by reference Pillai in view of Grumski and in further view of Schulz (US 20140142759; “Schulz”).
Claim 3. Dependent on the system of claim 1. Frenz does not explicitly disclose:
the test method comprises a sensor test method for testing a sensor of the material testing machine.
Schulz teaches a testing machine for testing a test specimen includes an actuator assembly configured to be coupled to the test specimen [Abstract]. Schulz further teaches a test method comprises a sensor test method for testing a sensor of the material testing machine [0079: he system herein includes historical data, algorithm or the like that can be accessed (internally or remotely if connected to a wide area network, if desired) and presented to the user based on the test parameters and the output from the sensor during the test to indicate to the user whether the compensation achieved may be appropriate].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Schulz’s tuning of a sensor during testing with Frenz’s, as modified, material testing sensor because adjusting the sensor for drift improves the reliability of the measurements by removing erroneous noise.
Prior Art Considered but not Utilized
The prior art made of record and not relied upon and is considered pertinent to applicant's disclosure is provided in the following table:
Prior Art Document Identifier
Inventor
Comment
US 11041789
K; Pradeep et al.
[0018] applying loads and scanning of the object under test, display online test status, diagnose test system health and safety actions, and generate test reports
US 20200173895
Pope; Mary Elizabeth et al.
[0029] safety systems and material testing systems include increased internal diagnostics and reporting to the operator of critical errors within the system
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Monica S Young whose telephone number is (303)297-4785. The examiner can normally be reached M-F 08:30-05:30 MST.
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/MONICA S YOUNG/Examiner, Art Unit 2855
/PETER J MACCHIAROLO/Supervisory Patent Examiner, Art Unit 2855
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