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 .
Response to Arguments
Applicant’s amendments to claims 9 and 12 overcome the previous 112 rejections of claims 9 and 12. Therefore, the previous 112 rejection of claims 9 and 12 have been withdrawn.
Applicant’s amendments to claims 1 and 19 overcome the 102 rejections of claims 1 and 19. Therefore, the 102 rejections of claims 1 and 19 have been withdrawn. However, upon further search and consideration, new rejections have been made (see below for details).
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.
Claims 1-4, 9, 19, and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Marshall (US 20150276588 A1; cited by Applicant) in view of Walsh (US 20180275052 A1; cited by Applicant) and Harris (US 20010046048 A1).
Regarding claim 1¸Marshall teaches a method for calibrating an infrared reflectance device using a liquid composition, the method comprising:
- providing a composition (102; 100; 104) comprising a plurality of particles and a liquid carrier (paragraph 69);
- emitting an infrared light (QCL; paragraphs 13 and 44) at the composition using a light source (QCL) to produce a reflected light (paragraph 69); and
- sensing the reflected light from the composition using a sensor (108).
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Marshall doesn’t explicitly teach diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.%, based on the total weight of the composition; the plurality of particles comprise an aluminum oxide.
Like Marshall (and like the instant application), Harris is directed to optical measurements of compositions in liquid carriers and teaches diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.% provides the benefit of optimizing the light scattering characteristics of the sample (paragraphs 19-20).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that it comprises diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.%, in order to optimize the light scattering characteristics of the sample.
The above combination doesn’t explicitly teach the plurality of particles comprise an aluminum oxide.
Like Marshall (and like the instant application), Walsh is directed to a method and device for calibrating an optical sensor and teaches the plurality of particles comprise an aluminum oxide (paragraph 23). Additionally, Walsh teaches this provides the benefit of being inert, not changing oxidation state in water, and being suitable and safe for use in food or beverage production facilities, where calibration is desired (paragraph 23).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the plurality of particles comprise an aluminum oxide in order to provide the benefit of being inert, not changing oxidation state in water, and being suitable and safe for use in food or beverage production facilities, where calibration is desired.
Regarding claim 2¸Marshall teaches providing the composition comprises flowing the composition through a channel (figure 8).
Regarding claim 3¸Marshall teaches the composition makes intimate contact with the sensor when flowing through the channel (interpreted in light of Applicant’s specification, where the sensor includes not just the photodetector but the optical elements in between the sample and the photodetector; in Marshall this corresponds to the window of the flow cell which is in intimate contact with the composition flowing through the channel and is the window through which the detector array detects; for example, see paragraphs 62 and 67 and figure 8).
Regarding claim 4¸Marshall teaches composition is separated from the sensor only by air when flowing through the channel (since claim 4 does not depend on claim 3, the sensor is considered to be the photodetector array, 108, and figure 8 illustrates no optical elements between the channel and 108).
Regarding claims 5-6, Fig. 8 of Marshall doesn’t explicitly teach positioning a light source substantially perpendicular relative to the channel (claim 5); the light source is positioned perpendicular to the channel (claim 6).
However, Marshall teaches other embodiments where the light source is positioned perpendicular to the channel (e.g. figure 1).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the light source is positioned perpendicular to the channel in order to measure reflections at a variety of angles, including perpendicularly to ensure the sensor is calibrated to work at a variety of angles.
Regarding claim 8, in the above combination the infrared light is emitted at an angle of about 90 relative to the flow of the composition through the channel (in the combination of claim 6 above and figure 8 of Marshall).
Regarding claim 9¸Marshall teaches the infrared light has a wavelength of from about 700 nm to about 1 mm (mid-IR in paragraph 44).
Regarding claims 11-12 and 26, Marshall doesn’t explicitly teach the plurality of particles comprises nanoparticles (claim 11); the plurality of particles have an average diameter of about 1 to about 800 nm, preferably about 100 to about 700 nm, preferably about 200 to about 600 nm, or preferably about 300 to about 550 nm (claims 12 and 26).
Like Marshall (and like the instant application), Walsh is directed to a method and device for calibrating an optical sensor and teaches the plurality of particles comprises nanoparticles; the plurality of particles have an average diameter of about 1 to about 800 nm (paragraphs 23-24).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the plurality of particles comprises nanoparticles; the plurality of particles have an average diameter of about 1 to about 800 nm – in order to calibrate using nanoparticles that can mimic nanoparticle samples.
Regarding claims 14 and 28, Marshall doesn’t explicitly teach the composition further comprises an acid.
Like Marshall (and like the instant application), Walsh is directed to a method and device for calibrating an optical sensor and teaches the composition further comprises an acid provides the benefit of preventing bacterial growth (paragraph 35).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the composition further comprises an acid in order to prevent bacterial growth.
Regarding claims 15 and 29, in the above combination the acid is at least one of: hydrochloric acid, hydrobromic acid, hydroiodic acid, nitric acid, perchloric acid, sulfuricacid, 1-glutamic acid, lactic acid, malic acid, succinic acid, acetic acid, formic acid, hydrogen sulfide, trichloracetic acid, fumaric acid, tartaric acid, citric acid, 1-glutamic hydrochloride, and maleic acid (Walsh: paragraph 35).
Regarding claims 16 and 30, in the above combination the acid is at least one of: I- glutamic acid, lactic acid, hydrochloric acid, malic acid, succinic acid, acetic acid, formic, hydrogen sulfide, trichloracetic acid, fumaric acid, tartaric acid, citric acid, 1-glutamic hydrochloride, and maleic acid (Walsh: paragraph 35).
Regarding claims 17 and 31, in the above combination the acid is present in an amount from about 0.05 to about 15 wt.% (paragraph 35).
Regarding claims 18 and 32, Fig. 8 of Marshall doesn’t explicitly teach the liquid carrier comprises water.
However, Marshall teaches the liquid carrier comprises water (paragraphs 84, 111, and 14). Additionally, Marshall teaches this provides a variety of benefits such as mimicking samples that are in water and the IR light source having sensitivity in samples in water (paragraphs 84, 111, and 14)
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the embodiment of figure 8 such that the liquid carrier comprises water in order to either mimic samples that are in water and/or have high sensitivity by having using the IR sensor taught by Marshall to investigate samples in water.
Regarding claim 19¸Marshall teaches a system comprising:
a light source (QCL) configured to emit an infrared light (paragraphs 13 and 44);
a composition (102; 100; 104) comprising a plurality of particles and a liquid carrier (paragraph 69), wherein at least a portion of the plurality of particles is adapted to reflect infrared light (paragraph 69);
a sensor (108) configured to sense the reflected infrared light; and
an apparatus defining an inlet port, an exit port, and a channel extending therebetween, wherein the inlet port is configured to receive the composition and the outlet port is in fluid communication with the inlet port via the channel (figure 8).
The above combination doesn’t explicitly teach the plurality of particles comprise an aluminum oxide.
Like Marshall (and like the instant application), Walsh is directed to a method and device for calibrating an optical sensor and teaches the plurality of particles comprise an aluminum oxide (paragraph 23). Additionally, Walsh teaches this provides the benefit of being inert, not changing oxidation state in water, and being suitable and safe for use in food or beverage production facilities, where calibration is desired (paragraph 23).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the plurality of particles comprise an aluminum oxide in order to provide the benefit of being inert, not changing oxidation state in water, and being suitable and safe for use in food or beverage production facilities, where calibration is desired.
Regarding “the plurality of particles having an average diameter of about 500 to about 600 nm,” in the above combination the plurality of particles having an average size of 100 to 500 nm (Walsh, paragraph 24). Therefore, this suggests to one of ordinary skill in the art an average diameter of 100 to 500 nm, since in the art particle size generally refers to the diameter or the effective diameter of the particle. Therefore, the ranges of the prior art combination and the range of the claim are overlapping ranges (500 nm and about 500 nm overlap) and a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, there has been no showing of criticality for the range 500-600nm. Even if one were to consider the ranges as not explicitly overlapping, Walsh teaches the particle size is a result effective variable that can be optimized to achieve the desired light scattering, including being large enough to have desired light scattering and being small enough that it doesn’t fall out of the suspension (paragraph 24). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the particle size, including choosing an average diameter between about 500 nm and about 600 nm, to achieve the desired light scattering at the chosen wavelength of light, while maintaining the mixture, to enable accurate measurements
Regarding claim 20, in the above combination the light source is positioned relative to the apparatus such that the infrared light is emitted at emitted at an angle of about 800 to about 1000 relative to the composition when flowing through the channel (in the combination of claim 6 above and figure 8 of Marshall).
Regarding claim 21, in the above combination the light source is positioned relative to the apparatus such that the infraredlight is emitted at an angle of about 900 relative to the composition when flowing through the channel (in the combination of claim 6 above and figure 8 of Marshall).
Regarding claim 22¸Marshall teaches the sensor is positioned to be in intimate contact with the composition when the composition flows through the channel (interpreted in light of Applicant’s specification, where the sensor includes not just the photodetector but the optical elements in between the sample and the photodetector; in Marshall this corresponds to the window of the flow cell which is in intimate contact with the composition flowing through the channel and is the window through which the detector array detects; for example, see paragraphs 62 and 67 and figure 8).
Regarding claim 23¸Marshall teaches the composition is separated from the sensor only by air when flowing through the channel (since claim 4 does not depend on claim 3, the sensor is considered to be the photodetector array, 108, and figure 8 illustrates no optical elements between the channel and 108).
Regarding claim 25¸ in the above combination the plurality of particles comprises titanium dioxide, alumina, or a combination thereof (Walsh: paragraph 23).
Regarding claim 27¸ in the above combination the composition has a pH of about 1 to about 5, about 1 to about 4, about 1 to about 3, or about 1.5 to about 3 (Walsh: paragraphs 35 and 69).
Claims 7 and 34 rejected under 35 U.S.C. 103 as being unpatentable over Marshall, Harris, and Walsh as applied to claim 2 above, and further in view of Shelley (US 20090321648 A1) and Biemann (US 4823009 A).
Regarding claim 7, Marshall suggests but doesn’t explicitly teach the infrared light is emitted at an angle of incidence of about 20 to about 70 (suggested by figure 8, which illustrates the angle as being in this range). Additionally, it is well known in the art of optical measuring and testing to have the angle of incidence of about 20 to about 70. For example, like the above combination (and like the instant application), both Shelley and Biemann are directed to optical reflectance measurements using infrared wavelengths and teach an angle of incidence of about 20 to about 70 (Shelley, paragraph 18; Biemann, column 9, lines 5-10). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the infrared light is emitted at an angle of incidence of about 20 to about 70 in order to optimize the angle of illumination such that it reflects primarily off the composition instead of the other elements such as the channel.
It is also noted that this is a wide range of conventional angles of incidence and one of ordinary skill in the art often chooses angles in this range based on the particulars of the measurement environment to achieve expected results based on the an ordinary level of skill understanding of the reflective properties of samples, as well as to provide the desired placement of the light sources and detectors in the measurement environment.
Regarding claim 34¸Marshall teaches a method for calibrating an infrared reflectance device using a liquid composition, the method comprising (also see the above citations):
- providing a composition (102; 100; 104) comprising a plurality of particles and a liquid carrier (paragraph 69);
- emitting an infrared light (QCL; paragraphs 13 and 44) at the composition using a light source (QCL) to produce a reflected light (paragraph 69); and
- sensing the reflected light from the composition using a sensor (108).
Regarding “the plurality of particles having an average diameter of about 500 to about 600 nm,” in the above combination the plurality of particles having an average size of 100 to 500 nm (Walsh, paragraph 24). Therefore, this suggests to one of ordinary skill in the art an average diameter of 100 to 500 nm, since in the art particle size generally refers to the diameter or the effective diameter of the particle. Therefore, the ranges of the prior art combination and the range of the claim are overlapping ranges (500 nm and about 500 nm overlap) and a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, there has been no showing of criticality for the range 500-600nm. Even if one were to consider the ranges as not explicitly overlapping, Walsh teaches the particle size is a result effective variable that can be optimized to achieve the desired light scattering, including being large enough to have desired light scattering and being small enough that it doesn’t fall out of the suspension (paragraph 24). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the particle size, including choosing an average diameter between about 500 nm and about 600 nm, to achieve the desired light scattering at the chosen wavelength of light, while maintaining the mixture, to enable accurate measurements
Marshall suggests but doesn’t explicitly teach the infrared light is emitted at an angle of incidence of about 20 to about 70 (suggested by figure 8, which illustrates the angle as being in this range). Additionally, it is well known in the art of optical measuring and testing to have the angle of incidence of about 20 to about 70. For example, like the above combination (and like the instant application), both Shelley and Biemann are directed to optical reflectance measurements using infrared wavelengths and teach an angle of incidence of about 20 to about 70 (Shelley, paragraph 18; Biemann, column 9, lines 5-10). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the infrared light is emitted at an angle of incidence of about 20 to about 70 in order to optimize the angle of illumination such that it reflects primarily off the composition instead of the other elements such as the channel.
It is also noted that this is a wide range of conventional angles of incidence and one of ordinary skill in the art often chooses angles in this range based on the particulars of the measurement environment to achieve expected results based on the an ordinary level of skill understanding of the reflective properties of samples, as well as to provide the desired placement of the light sources and detectors in the measurement environment.
Regarding claim 35, the above combination has a ph range that overlaps/encompasses the claimed pH between about 1 to about 2 and teaches a specific example that is close to the claimed range (in Walsh, a pH of less than 5, with a specific example of 2.5 in paragraphs 35 and 69, and 2.5 is close to “about 2”). Additionally, Walsh teaches the pH is a result effective variable that can be optimized to achieve the desired acidity necessary to prevent bacterial growth (paragraph 35). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the pH including having a pH between about 1 to about 2, in order to achieve a pH that is acidic enough to minimize the undesired bacterial growth to the degree desired.
Claims 10 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Marshall, Harris, and Walsh as applied to claims 1 and 19 above, and further in view of Kittelson (US 20160341649 A1).
Regarding claim 10¸ Marshall doesn’t explicitly teach the plurality of particles further comprises a magnesium oxide, a titanium oxide, a zinc oxide, a cerium oxide, or a combination of two or more thereof.
Like Marshall (and like the instant application), Kittelson is directed to a calibration of an infrared reflectance device and method and teaches the plurality of particles comprises an aluminum oxide, a magnesium oxide, a titanium oxide, a zinc oxide, a cerium oxide, or a combination of two or more thereof (magnesium oxide or zinc oxide in paragraph 48). Additionally, Kittelson teaches this provides the benefit of being adapted for mineral product ingredients (paragraph 48).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the plurality of particles comprises an aluminum oxide, a magnesium oxide, a titanium oxide, a zinc oxide, a cerium oxide, or a combination of two or more thereof – in order to calibrate the device for the type of measurements one wishes to make, such as using magnesium oxide or zinc oxide to calibrate for measuring mineral product ingredients).
Regarding claim 24¸ in the above combination the plurality of particles comprises metal oxides selected from aluminum oxides, magnesium oxides, titanium oxides, zinc oxides, cerium oxides, and a combination of two or more thereof (magnesium oxide or zinc oxide in paragraph 48 of Kittelson).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Marshall, Harris, and Walsh as applied to claim 1 above, and further in view of Harris (US 20010046048 A1).
Regarding claim 13, Marshall doesn’t explicitly teach diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.%, preferably about 0.1 to about 15 wt.%, or preferably about 0.1 to about 10 wt.%, based on the total weight of the composition.
Like Marshall (and like the instant application), Harris is directed to optical measurements of compositions in liquid carriers and teaches diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.% provides the benefit of optimizing the light scattering characteristics of the sample (paragraphs 19-20).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that it comprises diluting the composition to obtain a concentration for the plurality of particles of about 0.1 to about 20 wt.%, in order to optimize the light scattering characteristics of the sample.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUFUS L PHILLIPS whose telephone number is (571)270-7021. The examiner can normally be reached M-Th, 2 -10 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michelle Iacoletti can be reached at (571) 270-5789. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUFUS L PHILLIPS/ Examiner, Art Unit 2877
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