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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claims 9, 10, 21 and 25 uses the term “means”.
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) 1-14, 18-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Demirei et al. (10,094,759) and in view of Belzil et al. (2021/0371804).
Claim 1
Demirei et al. (10,094,759) discloses a portable device (Fig. 6) for measuring at least one parameter of particles in solution (Col. 30, lines 33-41), the portable device (Fig. 6) comprising: a light source (Fig. 7, Ref. 3 Watt White LED); a camera (Fig. 7, Ref. Camera) comprising an imaging sensor (Fig. 7, Ref. spherically-curved photosensor) for generating digital images (Col. 31, lines 2-5); an optical system comprising at least one objective lens and/or an objective and/or a lens and/or a combination of lenses (Fig. 7, Ref. lens system), and a sample holder (Fig. 7, Ref. Sample Holding Chamber), wherein a sample comprises the particles (sperm) in solution (Col. 9, lines 55-60); wherein the imaging sensor and/or camera has a frame rate of at least 100 frames per second (Col. 20, lines 55-59).
Demirei et al. (10,094,759) substantially teaches the claimed invention except that it does not show the frame rate greater than 100 fps. Belzil et al. (2021/0371804) shows that it is known to provide images taken between 100-300 fps (Para. 0143) for a device for measuring a biological sample. It would have been obvious to combine the device of Demirei et al. (10,094,759) with the greater than 100 fps of Belzil et al. (2021/0371804) before the effective filing date of the claimed invention for the purpose of providing more data points per second for accurately analyzing a sample, therefore improving the detecting detail of the sample.
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Claim 2
Demirei et al. (10,094,759) in view of Belzil et al. (2021/0371804) discloses the claimed invention except for the frame rate of greater than 100 frames per second is with an image size of at least 512x512 pixels (+1-5%). It would have been obvious to one having ordinary skill in the art at the effective filing date of the claimed invention was made to combine Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with FPS and image size listed above since it was well known in the art that having the greater than 100 fps at a low resolution such as 512x512 will maximize performance metrics which reduces system latency, therefore providing smoother visualization. The examiner takes Official Notice that the elements listed above are well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.
Claim 3
Demirei et al. (10,094,759) discloses the device is at least partially enclosed or enclosed in a housing (See Fig. 6; Col. 14, lines 5-8; housing for holding the illumination sub-assembly).
Claim 4
Demirei et al. (10,094,759) discloses the device is for characterizing fluctuations of intensity in the images (Col. 20, lines 60-67; strobe light will produce fluctuations in intensity of the images).
Claim 5
Demirei et al. (10,094,759) discloses at least one parameter may include motility of the particles, mean speed, concentration, size, amplitude of head movement, rate of diffusion and/or frequency of head movement (Col. 4, lines 46-53).
Claim 6
Demirei et al. (10,094,759) discloses the optical system and/or imaging sensor is configurable or configured such that a pixel size in the image is and/or is selectable from a range of 0.1 micron/pixel to 10.0 micron/pixel (Col. 20, lines 23-30).
Claim 7
Demirei et al. (10,094,759) discloses the pixel size in the image is substantially 0.86, 0.9, 1.7, 2, 2.1, 4.3 and/or 7 micron/pixel (Col. 20, lines 23-30; 2 microns).
Claim 8
Demirei et al. (10,094,759) discloses the imaging sensor comprises a pixel size in a range of 0.5 to 10 microns/pixel (Col. 20, lines 23-30; pixels in the chip may be less than 10 microns)
Claim 9
Demirei et al. (10,094,759) discloses the device comprises a means for running in different binning or skipping modes (Col. 28, lines 40-43; pixel binning)
Claim 10
Demirei et al. (10,094,759) discloses the device comprises a means (temperature controller) to heat, cool or maintain the temperature of the sample and/or the sample holder at a predetermined temperature (Col. 27-28, lines 57-3).
Claim 11, 12, 13
Demirei et al. (10,094,759) in view of Demirei et al. (10,094,759) discloses the claimed invention except for the device comprises a heated stage configured to heat or maintain the temperature of the sample and/or sample holder and/or a plurality of channels of a sample slide at the predetermined temperature; the heated stage comprises a plate that is heated to the predetermined temperature, a resistor or a plurality of resistors to heat the plate and a temperature sensor to measure the temperature of the plate; the predetermined temperature at least one of: varies by only +/-0.1 °C +/- 0.5°C or +/-1°C; is between ambient temperature and 50°C; is in a range of 36-41 °C is in a range of 36-41°C +/-0.1°C; is in a range of 36-41°C +/-0.5°C; is in a range of 36-41°C +/-1°C; is substantially 36°C, 36°C +/-0.10C, 36°C +/-0.5°C, 36°C +/-10C, 37°C, 37°C +/-0.10C, 37°C +/- 0.50C,370C +/-1 37.50C, 37.5°C +/-0.10C, 37.5°C +/-0.5°C, 37.5°C +/-10C, 38°C, 38°C +/- 0.10C, 38°C +/-0.5°C, 38°C +/-10C, 39°C, 39°C +/-0.10C, 39°C +/-0.5°C, 39°C +/-10C, 40°C,40°C +/-0.1 C, 40°C +/-0.5°C, 40°C +/-1 C, 41-C, 41-C +/-0.1 C, 41-C +/-0.5°C, and/or 41 C+/-1 0C. It would have been obvious to one having ordinary skill in the art at the effective filing date of the claimed invention was made to combine Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with the different types of heating elements and temperature ranges listed above since it was well known in the art that different types of heating elements can meet specific requirements for precise temperature control or ranges of temperature, heating efficiency, therefore allowing control of temperature fluctuations within a very narrow range. The examiner takes Official Notice that the elements listed above are well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.
Claim 14
Demirei et al. (10,094,759) discloses a processing unit (processor) for processing and/or being configured to process the digital images (Col. 28, lines 25-50).
Claim 18
Demirei et al. (10,094,759) discloses the particles are micro-organisms (Col. 8-9, lines 65-2).
Claim 19
Demirei et al. (10,094,759) discloses the optical system comprises at least two objective lenses (See Fig. 7, Ref. lens element; Fig. 7 shows three lens elements), wherein the at least two objective lenses have at least one different optical property (each one of the lens elements has a different shape therefore producing a different optical property).
Claim 20
Demirei et al. (10,094,759) in view of Demirei et al. (10,094,759) discloses the claimed invention except for the objective lens or lenses has at least one of: a focal length of 15cm, a focal length of less than 15cm, a magnification in a range of lx to 4x, a magnification in a range of 5x to 10x, a magnification in a range of 5x to 20x, and/or a magnification in a range of 5x to 50x. It would have been obvious to one having ordinary skill in the art at the effective filing date of the claimed invention was made to combine Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with magnifications listed above since it was well known in the art that objective lens magnification is crucial because it determines the observable field of view, therefore allowing for a comprehensive multi-scale analysis of a sample. The examiner takes Official Notice that the elements listed above are well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.
Claim 21
Demirei et al. (10,094,759) in view of Demirei et al. (10,094,759) discloses the claimed invention except for the optical system comprises a means for reflecting light from the objective lens to the imaging sensor. It would have been obvious to one having ordinary skill in the art at the effective filing date of the claimed invention was made to combine Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with means for reflecting light to the image sensor since it was well known in the art that using a reflector to change the direction of light to a sensor can reduce the overall size of the sensor system, therefore making is more compact or portable. The examiner takes Official Notice that the elements listed above are well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.
Claim 22
Demirei et al. (10,094,759) the device is configurable and/or configured such that light from the light source (Fig. 7, Ref. 3 watt white LED) is transmitted to the sample holder (Fig. 7, Ref. sample holding chamber) without undergoing refraction (Fig. 7, does not show refracted light to the sample holder).
Claim 23
Demirei et al. (10,094,759) discloses the sample holder (sample containing device) is configured such that a pre-determined position (alignment feature) or positions is or are selectable for a plurality of channels of a sample slide (Col. 26, lines 23-39).
Claim 24
Demirei et al. (10,094,759) discloses measuring at least one parameter of particles
(Col. 30, lines 33-41) in a portable device (Fig. 6), the method comprising: providing a sample comprising particles in solution (Col. 30, lines 33-41), introducing the sample into a sample holder (See Fig. 2)(Col. 10-11, lines 61-13) in the portable device, generating digital images (Col. 1, lines 31-42) from an imaging sensor (Fig. 7, Ref. spherically-curved photosensor) in a camera (Fig. 7, Ref. camera) in the portable device (See Fig. 7), and recording the digital images at a frame rate of at least 100 frames per second (Col. 20, lines 55-59).
Demirei et al. (10,094,759) substantially teaches the claimed invention except that it does not show the frame rate greater than 100 fps. Belzil et al. (2021/0371804) shows that it is known to provide images taken between 100-300 fps (Para. 0143) for a device for measuring a biological sample. It would have been obvious to combine the device of Demirei et al. (10,094,759) with the greater than 100 fps of Belzil et al. (2021/0371804) before the effective filing date of the claimed invention for the purpose of providing more data points per second for accurately analyzing a sample, therefore improving the detecting detail of the sample.
Claim 25
Demirei et al. (10,094,759) discloses a portable device (See Fig. 7) and a remote processing unit (Col. 20, lines 1-6; smart phone) for measuring at least one parameter of particles in solution (Col. 30, lines 33-41), the portable device (Col. 21, lines 6-21) comprising: a light source (Fig. 7, Ref. 3 Watt white LED); a camera (Fig. 7, Ref. camera) comprising an imaging sensor (Fig. 7, Ref. spherically-curved photosensor) for generating digital images (Col. 1, lines 31-42); an optical system comprising at least one objective lens (Fig. 7, Ref. lens system); a sample holder (Fig. 7, Ref. Sample holder), and a means for transferring the digital images to the remote processing unit (Col. 21, lines 6-21; smart phone); wherein the imaging sensor and/or camera (Fig. 7, Ref. camera) has a frame rate of at least 100 frames per second (Col. 20, lines 55-59).
Demirei et al. (10,094,759) substantially teaches the claimed invention except that it does not show the frame rate greater than 100 fps. Belzil et al. (2021/0371804) shows that it is known to provide images taken between 100-300 fps (Para. 0143) for a device for measuring a biological sample. It would have been obvious to combine the device of Demirei et al. (10,094,759) with the greater than 100 fps of Belzil et al. (2021/0371804) before the effective filing date of the claimed invention for the purpose of providing more data points per second for accurately analyzing a sample, therefore improving the detecting detail of the sample.
Claim(s) 15, 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Demirei et al. (10,094,759) and in view of Belzil et al. (2021/0371804) and in further view of Moitzi et al. (2017/0074768).
Claim 15
Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) substantially teaches the claimed invention except that it does not show an the processing unit comprises at least one pre-stored processing routine, the pre-stored processing routine for obtaining the at least one parameter, wherein the pre-stored processing routine is configurable by a user to analyze the power spectrum of the difference between pairs of the spatial Fourier transform of the digital images separated by a time delay over a range of time delay and spatial Fourier frequency, over all possible, or a selection of, pairs of Fourier images and/or over all possible, or a selection of, q values. Moitzi et al. (2017/0074768) shows that it is known to provide the processing unit (Fig. 11, Ref. 106) comprises at least one pre-stored processing routine, the pre-stored processing routine for obtaining the at least one parameter (determining particle size), wherein the pre-stored processing routine is configurable by a user to analyze the power spectrum (intensity) of the difference between pairs of the spatial Fourier transform of the digital images (Fig. 2, Ref. 202) separated by a time delay over a range of time delay (each image 202 was taken at different times with a delay in between) and spatial Fourier frequency (Para. 0077), over all possible (all images 202) for a device for determining particle size and/or shape. It would have been obvious to combine the device of Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with the pre-stored processing of Moitzi et al. (2017/0074768) before the effective filing date of the claimed invention for the purpose of providing different images in Fourier transforms to analyze their frequency content, therefore improving noise removal and improving the image quality.
Claim 17
Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) substantially teaches the claimed invention except that it does not show a processing unit is for carrying out and/or is configured to carry out Differential Dynamic Microscopy (DDM), over all pairs of images and q values or a subsection of all pairs of images and/or a subsection of all the q values, to obtain the at least one parameter. Moitzi et al. (2017/0074768) shows that it is known to provide a processing unit (Fig. 11, Ref. 106) is for carrying out and/or is configured to carry out Differential Dynamic Microscopy (DDM) (Para. 0083), over all pairs of images (Fig. 2, Ref. 202) and q values (Para. 0084) to obtain the at least one parameter (particle size or shape) for a device for image evaluation and differential image analysis. It would have been obvious to combine the device of Demirei et al. (10,094,759) and Belzil et al. (2021/0371804) with the processing unit listed above with that of Moitzi et al. (2017/0074768) before the effective filing date of the claimed invention for the purpose of providing quantitatively measure dynamics in complex fluids, therefore allowing target analysis in specific regions of the sample.
Allowable Subject Matter
Claim 16 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 16, the prior art fails to disclose or make obvious in analyzing the power spectrum of the difference between pairs of the spatial Fourier transform of the digital images separated by a time delay over a range of time delay and spatial Fourier frequency comprises: calculating the differential image correlation function (DICF), i.e. calculating the spatial Fourier transform of the images and then calculating the power spectrum of the difference of pairs of the Fourier images over a range of accessible delay time tau and spatial frequency (q) provided by the Fourier transform of the images, over all possible, or a subsection of, pairs of Fourier images, then averaging all resulting DICF which has the same delay time (tau) together, and then performing a radial average for each q values yielding the final time-averaged and vector {q}-averaged DICF as a function of delay time tau and spatial frequency q, over all possible, or a subsection of, q values, and in combination with the other recited limitations of claims 1, 14, 15.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK STAFIRA whose telephone number is (571)272-2430. The examiner can normally be reached M-F 6:30am-3pm.
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/MICHAEL P STAFIRA/Primary Examiner, Art Unit 2877 December 11, 2025