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 .
Detailed Action
Restriction
Applicant’s election without traverse of Species I, claims 2-12 in the reply filed on 2-16-2026 is acknowledged.
While the applicant elected Species I in the reply which encompasses claims 1-12 (1 being generic) they then went on to state that the “election reads on claims 1-17” which is not true. The election of Species I only entails the prosecution of claims 1-12. Further, the applicant has improperly marked up claims 13-17. They should be listed as “withdrawn” in future responses.
Thus, the examiner will be prosecuting claims 1-12 in the following rejection.
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. Such claim limitation(s) is/are: at least one light emitting element, at least one reference light emitting element, at least one interface element, at least one segmented aperture, in claims 1-12.
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.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 12, the applicant claims “wherein the at least one data processor is configured for processing and/or storing the calculated absorbance of the sample,” however, in the claim chain there is no previously claimed calculated absorbance of the sample thus scope of the limitation is indefinite since it isn’t clear where this absorption calculation is performed.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4, 6, 8, 9, & 11, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Houck et al (PGPub 2021/0063241) (Houck).
Regarding Claim 1, Houck discloses a spectrometer device for analyzing a sample (Paragraph 10), comprising:
at least one light emitting element (104, fig. 2) configured for emitting light in a measurement spectrum (202);
at least one reference light emitting element (104) configured for emitting reference light in a reference spectrum, wherein the at least one reference light emitting element is separate from the at least one light emitting element (Paragraph 17). Houck states that the light source may be a plurality of LEDs thus the portion of the light source (104) emitting the measurement light (202) would be separate from the portion of the light source (104) emitting the reference light (204);
at least one interface element (110, 116, & 118) configured for receiving light of the measurement spectrum and transferring light of the measurement spectrum to at least one detector array (114-1), wherein the interface element is further configured for blocking reference light of the reference spectrum (Paragraph 30);
at least one segmented aperture configured for acting as one or more of an angle filter and a stray light filter (Paragraph 21). Houck states that the cover (110) may include an aperture stop meeting this limitation;
at least one optical separation element (112, Paragraph 24); and
the at least one detector array comprising a plurality of detector elements (Paragraph 26);
wherein the detector array is configured for generating at least one detector signal according to an illumination of the plurality of detector elements by one or more of the measurement spectrum and the reference spectrum (Paragraph 26),
wherein each detector element is configured for receiving at least a portion of one or more of the measurement spectrum and the reference spectrum (Paragraph 26).
Regarding Claim 2, Houck discloses the aforementioned. Further, Houck discloses wherein the interface element, the reference light emitting element and the detector array are arranged such that the light emitted by the reference light emitting element travels to the detector array along an optical reference path (Fig. 2, 204), wherein the optical reference path is fully arranged within the spectrometer device. As can be seen the reference path is separate from the measurement path and remains internal to the device.
Regarding Claim 3, Houck discloses the aforementioned. Further, Houck discloses wherein the interface element is arranged such that the light (204) emitted by the reference light emitting element is at least partially reflected by the interface element (Paragraph 30) and that the light (202) emitted by the light emitting element is at least partially transmitted by the interface element (Paragraph 38).
Regarding Claim 4, Houck discloses the aforementioned. Further, Houck discloses wherein the light emitting element and the reference light emitting element are arranged within a housing of the spectrometer device (See fig. 2), wherein the interface element and the light emitting element are arranged such that the light emitted by the light emitting element is transmitted by the interface element and that light reflected by the sample is transmitted by the interface element wherein the interface element and the reference light emitting element are arranged such that the light emitted by the reference light emitting element is reflected by the interface element (Fig. 2, Paragraphs 30 & 38).
Regarding Claim 6, Houck discloses the aforementioned. Further, Houck discloses wherein the optical separation element (108) is disposed in an optical path before the detector elements of the detector array (see fig. 2);
wherein the optical separation element is configured for separating light into a spectrum of constituent wavelength components (Paragraph 21). This is the function of an optical diffractive element;
wherein each of the detector elements is configured for receiving at least a portion of one of the constituent wavelength components and for generating a respective detector signal depending on the illumination of the respective detector element by the at least one portion of the respective constituent wavelength component (Paragraph 26).
Regarding Claim 8, Houck discloses the aforementioned. Further, Houck discloses wherein the at least one light emitting element is a light emitting diode (LED), wherein the at least one reference light emitting element is an LED (Paragraphs 16 & 17).
Regarding Claim 9, Houck discloses the aforementioned. Further, Houck discloses wherein the at least one light emitting element and the reference light emitting element are infrared LEDs configured for emitting light in an infrared spectral range, such that the measurement spectrum and the reference spectrum lie within the infrared spectral range (Paragraph 16).
Regarding Claim 11, Houck discloses the aforementioned. Further, Houck discloses an electronics unit configured for determining information regarding a spectrum by evaluating the at least one detector signal generated by the detector array of the spectrometer device (Paragraph 40).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 5, 10, & 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Houck.
Regarding Claim 5, Houck discloses the aforementioned but fails to explicitly disclose wherein the segmented aperture is disposed in an optical path in between the interface element and the detector array; Houck disclose that the cover component (110) can include a lens, a window, an optical diffuser, an optical filter, an aperture stop, a reflective optical element, a diffractive optical element, a refractive optical element, and/or the like. Thus, it would stand that the cover component can be any combination of these things;
Thus, the examiner takes official notice that this would be obvious to one of ordinary skill in the art at the time of filing to have the segmented aperture is disposed in an optical path in between the interface element and the detector array;
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Houck with wherein the segmented aperture is disposed in an optical path in between the interface element and the detector array because the arrangement of optics is immaterial as long as it produces the desired results and having the aperture between, for example, a window and the detector would be a trivial matter that would be done for reasons such as preventing the aperture from being exposed to the environment outside the device.
Regarding Claim 10, Houck discloses the aforementioned. Further, Houck discloses at least one driving unit configured for controlling the at least one light emitting element and the at least one reference light emitting element by one or more of turning the light emitting element on and/or off, turning the reference light emitting element on and/or off, modulating the measurement spectrum and modulating the reference spectrum (Paragraph 18);
Houck fails to explicitly disclose wherein the spectrometer device further comprises at least one evaluation unit configured to generate the information related to the spectrum from the detector signal by calculating an absorbance of a sample from the detector signal depending on a location of the individual detector element in the detector array;
However, the examiner takes official notice that this would be obvious to one of ordinary skill in the art at the time of filing;
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Houck with at least one evaluation unit configured to generate the information related to the spectrum from the detector signal by calculating an absorbance of a sample from the detector signal depending on a location of the individual detector element in the detector array because absorption spectrometry is a well-known form of spectrometry commonly used to determine the composition of the sample by the wavelengths absorbed by the sample. One would choose to use absorption measurements of light because it is highly sensitive, non-destructive, and can be used to measure trace amounts in a sample.
Regarding Claim 12, Houck discloses the aforementioned but fails to explicitly disclose wherein the electronics unit comprises at least one data processor configured for processing and/or storing data wherein the at least one data processor is configured for processing and/or storing the calculated absorbance of the sample;
However, the examiner takes official notice that this would be obvious to one of ordinary skill in the art at the time of filing;
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Houck with wherein the electronics unit comprises at least one data processor configured for processing and/or storing data wherein the at least one data processor is configured for processing and/or storing the calculated absorbance of the sample because this is common computer hardware for processing data and the ability to process and store data allows for the quick and efficient processing of a large sum of data and storing it allows for recall at a later date for analysis.
Allowable Subject Matter
Claim 7 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:
As to Claim 7 the prior art of record, taken alone or in combination, fails to disclose or render obvious wherein the reference spectrum comprises electromagnetic radiation having smaller wavelengths than electromagnetic radiation comprised by the measurement spectrum, in combination with the rest of the limitations of the claim.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHON COOK whose telephone number is (571)270-1323. The examiner can normally be reached 11am-7pm.
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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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/JONATHON COOK/Examiner, Art Unit 2877 May 12, 2026
/Kara E. Geisel/Supervisory Patent Examiner, Art Unit 2877
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