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 .
Summary
Claims 16-30 are pending. Claims 16-30 are rejected herein. This is a First Action on the Merits.
Claim suggestions
Regarding claim 16: Claim 16 recites “a measuring probe having two electrodes” and then recites “a first measuring probe” and “a second measuring probe.” The Examiner recommends reciting “a measuring probe having first and second electrodes” in the preamble and then “the first electrode” in line 3 and “the second electrode” in line 4.
Regarding claim 21: Change “are so selected that” to --are selected so that--.
Claim Objections
Claim(s) 16, 24, and 30 is/are objected to because of the following informalities. Appropriate correction is required.
Regarding claims 16, 24, and 30: Change “containment” to --container--.
Regarding claim 30: In line 3, change “wherein device” to --wherein the
device--.
Claim Rejections - 35 USC § 112(b)
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(s) 16-30 is/are 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.
Regarding claims 16, 18, 19, and 23: These claims use the term "and/or." This term is indefinite and the Examiner recommends using "or" which avoids ambiguity and has the same patentable scope as that sought to be covered by "and/or." The Applicant may also consider using phrasing such as "at least one of."
Regarding claim 18: Every signal can be said to be composed of two signal parts in the same way that every number can be expressed as the sum of two other numbers. Therefore it is unclear what limitations this places on the subject matter of claim 16.
Regarding claim 28: Claim 28 repeats verbatim the first and second steps in claim 16. It is unclear if this is supposed to be a repetition of the method steps in claim 16 or is just a restatement of them. It appears that claim 28 just adds the structure of a third (ground) electrode. If that is the case, then that is the only language that needs to be in claim 28. Claim 28 has been examined as if it only requires a third (ground) electrode.
Regarding claim 30: Claim 30 recites that the device “is embodied to…” and then recites supplying excitation signals, receiving signals, and processing signals. However the only positively recited structure in claim 30, which is an apparatus claim, is two electrodes. Therefore claim 30 requires a structure that is capable of performing the claimed actions for the claim to be definite. The Examiner recommends using language such as “the device comprising electronics configured to…”
Regarding claims 17-29: These claims are rejected as indefinite for depending from an indefinite claim.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim(s) 18 is/are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Regarding claim 18: The scope of claim 18 is indefinite (see 112b rejection above). The claim does not appear to add any further method steps or meaningfully limit the method steps of claim 16. Therefore claim 18 is in improper dependent form.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 16-27 and 30 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by WERNET et al. (US 20170115153, hereinafter WERNET153).
Regarding claims 16 and 30: WERNET153 discloses: A method for determining and/or monitoring at least one process variable of a medium in a containment (abstract) using a measuring probe (1 in FIG. 1) having two electrodes (5, 6), the method comprising: in a first operating mode (conductive operating mode in para. 54), supplying a first electrode of the measuring probe with a first excitation signal (excitation signal is shown in FIG. 5; para. 63), wherein a second electrode of the measuring probe serves as a receiving electrode (determining resistance/conductivity from one electrode to the other in para. 23) and wherein a first received signal is received by the measuring probe (signal from conductive operating mode in para. 22-24); in a second operating mode (capacitive operating mode in para. 54), supplying the first electrode of the measuring probe with a second excitation signal (Different excitation signals are shown in FIG. 5; para. 63), wherein the second electrode of the measuring probe serves as a ground electrode (guard electrode connected to ground in para. 33), and wherein a second received signal is received by the measuring probe (response signals from capacitive operating mode in para. 22-24); and determining the at least one process variable based on the first and/or second received signals (fill level in para. 16; dielectric constant and conductivity in para. 21).
Regarding claim 17: WERNET153 discloses: the measuring probe is operated in a conductive and in a capacitive measuring mode (para. 54).
Regarding claim 18: As best understood, WERNET153 discloses: the first and/or the second excitation signal is/are composed of two signal parts (FIG. 5 shows three parts 21, 22, and 23. 21 and 22 are for the conductive mode and 23 is for the capacitive mode as discussed in para. 63.)
Regarding claim 19: WERNET153 discloses: the first and/or second excitation signal are/is, at least at times, a rectangular signal (FIG. 5), a sine signal, a triangular signal (FIG. 5), or a trapezoidal signal.
Regarding claim 20: WERNET153 discloses: the first and second excitation signals are the same (Because the signal shown in FIG. 5 is coming from the same excitation source and just changing over time, it can be considered the “same signal.”).
Regarding claim 21: WERNET153 discloses: the first and second excitation signals are so selected that they have the same arithmetic average value (para. 20).
Regarding claim 22: WERNET153 discloses: registering an impedance between the first and second electrodes based on the first received signal (para. 22-23).
Regarding claim 23: WERNET153 discloses: determining a presence of an accretion on the measuring probe based on the first and/or second received signal (“detection of possible formation of accretion on the measuring probe” in para. 24).
Regarding claim 24: WERNET153 discloses: the at least one process variable is a fill level or limit level (para. 16) of the medium in the containment, or a dielectric constant (para. 21) or a conductivity (para. 21) of the medium.
Regarding claim 25: WERNET153 discloses: when the medium has a conductivity below a predeterminable limit value, the process variable is ascertained based on the first received signal (FIG. 6 shows the different regions of conductivity with different measurement modes [conductive, capacitive, and both] used according to the conductivity.).
Regarding claim 26: WERNET153 discloses: when the medium has a conductivity above a predeterminable limit value, the process variable is ascertained based on the first and second received signals (This is the middle region of FIG. 6 using both conductive and capacitive modes as discussed in para. 64.).
Regarding claim 27: WERNET153 discloses: the first and second operating modes are performed alternately (para. 16).
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) 28 and 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over WERNET153 in view of WERNET et al. (US 20160116322, hereinafter WERNET322).
Regarding claims 28 and 29: As best understood, WERNET153 discloses: in the first operating mode (conductive operating mode in para. 54), supplying the first electrode (5) with the first excitation signal (excitation signal is shown in FIG. 5; para. 63), wherein the second electrode serves as receiving electrode (determining resistance/conductivity from one electrode to the other in para. 23), and wherein the first received signal is received by the measuring probe (signal from conductive operating mode in para. 22-24); in the second operating mode (capacitive operating mode in para. 54), supplying the first or second electrode with the second excitation signal (Different excitation signals are shown in FIG. 5; para. 63), and wherein the second received signal is received by the measuring probe (response signals from capacitive operating mode in para. 22-24); and determining the at least one process variable based on the first and/or second received signal (fill level in para. 16; dielectric constant and conductivity in para. 21).
WERNET153 does not disclose a third electrode.
WERNET322 however does teach a third electrode of the measuring probe that serves as ground electrode (para. 32). In this case the second electrode 8 is the guard electrode and the third electrode 11 is the ground electrode (para. 30; FIG. 1), thus meeting the limitations of claim 29.
One skilled in the art at the time the application was effectively filed would be motivated to incorporate the third electrode of WERNET322 into the measuring probe of WERNET153 in the case when the container is made of non-conductive material and therefore cannot serve as a ground (para. 32 of WERNET322).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANIEL J KOLB whose telephone number is (571)270-7601. The examiner can normally be reached M-F 9-5 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura M Sweeney can be reached at 571-272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NATHANIEL J KOLB/Examiner, Art Unit 2855
Prosecution Insights