DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
1- This office action is a response to an application filed on 12/16/2024, in which claims 19-38 are currently pending. The Application is a Continuation of 17822419, filed 08/25/2022, now U.S. Patent # 12201396. 17822419 is a Continuation of 17703920, filed 03/24/2022, now U.S. Patent # 12109006. 17703920 Claims Priority from Provisional Application 63243021, filed 09/10/2021
Information Disclosure Statement
2- The submitted information disclosure statement(s) (IDS) is(are) in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) is(are) being considered by the examiner.
Specification
3- The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which application may become aware in the specification.
Drawings
4- The drawings were received on 12/16/2024. These drawings are acceptable.
Claim Rejections - 35 USC § 112
5- 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.
6- Claims 19-33 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 pre-AIA the applicant regards as the invention.
As to claim 19, which reads “a respective plurality of speckle signals that are physically separated by more than the correlation distance and to transmit the speckle signals onto the optical detector”, the underlined clauses appear to present antecedence issues, as it is not clear whether the correlation distance refers to speckle correlation time/distance, which varies as a function of multiple variables, or to photon auto or cross- correlation. For examination purposes, all the options will be considered.
Claims 20-28 are similarly rejected by virtue of their dependence on claim 19.
As to claim 29, which reads “and an array of apertures, or an array of lenses, … such that: the speckle signal traverses less than 5 cm from the aperture or the lens to the optical detector”, the underlined clauses appear to present antecedence issues, as it is not clear to which aperture/lens the clauses pertain to among the array of apertures or array of lenses.
Claims 30-33 are similarly rejected by virtue of their dependence on claim 29.
Double Patenting
7- The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
8- Claims 29, 34 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1, 7 and 12 of Dunn et al. (U.S. Patent N. 12201396). Although the claims at issue are not identical, they are not patentably distinct from each other because the aforementioned claims of the instant application merely inconsequentially rephrase the scope of Dunn, reorder its claims and or limitations within the claims.
a- This is a non-provisional non-statutory double patenting rejection.
Claims of Application 18983330
Claim of Patent 12201396
29. (New) An optical speckle receiver, comprising: an optical detector; and an array of apertures, or an array of lenses, wherein each of the apertures or the lenses is configured to receive a respective speckle signal from a respective discrete location on a sample, and to transmit the respective speckle signal onto the optical detector such that: the speckle signal traverses less than 5 cm from the aperture or the lens to the optical detector; and respective speckle signals transmitted from two of the apertures or from two of the lenses at least partially spatially overlap on the optical detector.
34. (New) A wearable device, comprising: an optical speckle receiver, comprising: an optical detector; and an array of apertures, or an array of lenses, wherein the array of apertures or the array of lenses is spaced apart from the optical detector by less than 5 cm and is configured to be positioned between the optical detector and a sample such that the apertures or lenses respectively receive speckle signals from a plurality of discrete locations on the sample, and wherein the wearable device is configured to carry out at least one of blood flow measurements, blood pressure measurements, diffuse correlation spectroscopy, laser speckle imaging, laser speckle contrast analysis, speckle plethysmography, or speckle contrast optical spectroscopy (considered all as intended uses).
1. (Currently Amended) A system, comprising: a wearable device, comprising an optical speckle receiver, the optical speckle receiver comprising: a single optical detector configured to capture a speckle pattern; and a plurality of apertures, or a plurality of lenses, wherein: each of the apertures or the lenses is adapted to receive a respective speckle signal from a respective discrete location of multiple discrete locations on a sample, and to transmit, from a respective terminal portion of the aperture or lens, the respective speckle signal onto the single optical detector, the respective terminal portions of the apertures or lenses being spatially separated from each other and configured such that respective speckle signals transmitted from two of the apertures or from two of the lenses at least partially spatially overlap on the optical detector, and the optical detector is configured to receive a respective speckle signal from each of the plurality of apertures or from each of the plurality of lenses.
7. (Previously Presented) The system of claim 1, wherein the distance between the plurality of apertures or the plurality of lenses and the optical detector is less than 5 cm.
12. (Original) The system of claim 10, wherein the coherent light source includes a coherent light source operating at one or more visible wavelengths. (spectroscopy)
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 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 (MPEP 706.02(m)).
9- 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.
10- Claims 19-20, 23-25 and 27 are rejected under AIA 35 U.S.C. 102(a)(1) as being anticipated by McFarlane et al. (PGPUB No. 20120232402)
In addition, the functional recitation in the claims (e.g. "configured to" or "adapted to" or the like) that does not limit a claim limitation to a particular structure does not limit the scope of the claim. It has been held that the recitation that an element is "adapted to", "configured to", "designed to", or "operable to" perform a function is not a positive limitation but only requires the ability to so perform and may not constitute a limitation in a patentable sense. In re Hutchinson, 69 USPQ 139. (See MPEP 2111.04); see also In In re Giannelli, 739 F.3d 1375, 1378, 109 USPQ2d 1333, 1336 (Fed. Cir. 2014).
Also, it should be noted that it has been held that a recitation with respect to the manner in which a claimed device is intended to be employed does not differentiate the claimed device from a prior art apparatus satisfying the claimed structural limitations Ex-parte Masham 2 USPQ2d 1647 1987).
The claimed system in the instant application is capable of performing the claimed functionality, as is the prior art used in the present office action. The Examiner notes that where the patent office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the applicant to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on. In re Swinehart and sfiligoj, 169 USPQ 226 (C.C.P.A. 1971).
As to claim 19, McFarlane discloses a system and shows in Abstract and figs. 1-12, comprising:
a wearable device [wearable system displayed in Figs. 3, 11-12 with details in Figs. 1-2], comprising: comprising an optical speckle receiver [module 2, 102 or 302 with its corresponding opto-electronics necessarily generates speckle light since a coherent light, i.e. laser, is used as a light source; ¶ 93], the optical speckle receiver comprising: an optical detector [cameras or detector array 6, 125 or 325; ¶ 73]; a plurality of apertures, or a plurality of lenses [output apertures at the ends of optical fibers inside bundle 104 or 303; or of fibers 28, 32 1204]; and a coherent light source (105/106 or 305/306), wherein the plurality of apertures or the plurality of lenses are configured to receive, from the coherent light source and through a sample, a respective plurality of speckle signals [Figs. 3, 11 present the end apertures as receiving laser scattering signals, i.e. speckle – see ¶ 37, 70, 82, 93-, from different respective locations from human tissue 39, as clearly explained in Fig. 2 and ¶ 10, 67-70] that are physically separated by more than the correlation distance and to transmit the speckle signals onto the optical detector (given the 112 rejection here above, and considering a correlation distance as a function of wavelength, distance between sample and aperture and spot size of the illumination light on the sample, see the reference in the Conclusion as a mere evidence and not used in this rejection, it is clear that the separation between the apertures of the optical fibers at the contact with the tissue is greater than the minimal speckle correlation distance for the wavelengths used in the apparatus and the corresponding geometric parameters).
(claim 20) comprising the plurality of apertures, the plurality of apertures comprising a plurality of holes in a plate [¶ 70, the apertures of the fiber ends arrive at a termination plane 114, i.e. holes in a plate].
(claim 23) wherein the apertures or the lenses are arranged in a protrusion of the optical speckle transceiver (terminal 104), and wherein the coherent light source comprises a window in an outer surface of the optical speckle transceiver (output of terminal 103 towards cap 102) that is separated from the protrusion (Fig. 3).
(claims 24-25) configured in a transmission arrangement; configured in a reflection arrangement (Figs. 2-3; some scattering is reflected back to the fibers. Some other scattering transmits through the tissue along different path lengths before reaching the optical fibers 31-16).
(claim 27) wherein the coherent light source is configured to generate coherent light having a wavelength within the range of 280 nm to 1 mm (¶ 8, 66, 86 for ex.).
Claim Rejections - 35 USC § 103
11- 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 of this title, 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.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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.
12- Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over McFarlane in view of Frisken et al. (US 20180228363 A1)
As to claim 21, McFarlane teaches the system of claim 19.
Moreover, McFarlane teaches wherein: the optical speckle receiver comprises a plurality of lenses [123/124 In Fig. 3 for ex.]. McFarlane does not teach using a plurality of lenses include a plurality of microlenses;
However, in a similar field of endeavor, Friesken suggests using a plurality of lenses include a plurality of microlenses; the plurality of lenses comprises individual lenses or monolithic block of lenses (2D lenslet block array 10 in Figs. 3, 5, 7, 9-12, 14).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention was made to modify the lens module of the device/method/system of McFarlane when modified by Frisken such that the lenses include the plurality of microlenses; for the advantages such as: to produce an optical module with an improved selectivity in the imaging areas.
13- Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over McFarlane et al. (PGPUB N. 20120232402) in view of Wakita (PGPUB 20210161408).
As to claim 26, McFarlane teaches the system of claim 19.
McFarlane does not teach expressly the optical speckle transceiver configured such that speckle signals transmitted from different apertures or different lenses at least partially spatially overlap on the optical detector.
However, in a similar field of endeavor, Wakita teaches a scattered light measuring apparatus and method of use [Abstract] wherein a signal detector is configured to capture/image a speckle image via the lens array [Figs. 9, 18-22, 39, 45, 50-71; ¶ 353, 411 for ex.]. It also teaches speckle signals overlapping and non-overlapping onto different pixels of the detector (figs. 19, 27-28 and equivalents for ex.).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention was made to modify the lens module of the device/method/system of McFarlane when modified by Wakita such the optical detector configured to capture a speckle pattern; such that speckle signals transmitted from different apertures or different lenses at least partially spatially overlap on the optical detector, for the advantages, such as suggested by Wakita, of adaptively select the imaging apparatus for optical measurements of the sample [for ex. ¶ 411]
14- Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over McFarlane et al. (PGPUB N. 20120232402) in view of O’Brien (PGPUB 20240156355).
As to claim 28, McFarlane teaches the system of claim 19.
Moreover, McFarlane teaches a wearable device comprising the optical speckle transceiver of claim 19 (See rejection of claim 19).
McFarlane does not teach expressly wherein the wearable device is configured to carry out speckle plethysmography measurements.
However, in a similar field of endeavor, O’Brien teaches a hemodilution detector [Abstract, Figs. 1-14] wherein the wearable device is configured to carry out speckle plethysmography measurements [Fig. 13; ¶ 34 for ex.]
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention was made to use the device/method/system of McFarlane when modified by O’Brien such that the wearable device is configured to carry out speckle plethysmography measurements, for the advantages, such as suggested by O’Brien, of using the higher SNR of the SPG technique [for ex. ¶ 34]
Allowable Subject Matter
15- Claims 22, 29-33, 34-38 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, or the double patenting rejection, as set forth in this Office action, and to include all of the limitations of the base claim and any intervening claims.
The following is an examiner's statement of reasons for the possibly allowable matter:
As to claim 22, the prior art of record, taken either or in combination, fails to disclose or render obvious:
The optical speckle transceiver of claim 19, configured such that a speckle signal transmitted from one of the apertures or one of the lenses traverses through less than 2 cm from the one of the apertures or one of the lenses to the optical detector.
As to claim 29, the prior art of record, taken either or in combination, fails to disclose or render obvious:
An optical speckle receiver, comprising: an optical detector; and an array of apertures, or an array of lenses, wherein each of the apertures or the lenses is configured to receive a respective speckle signal from a respective discrete location on a sample, and to transmit the respective speckle signal onto the optical detector such that: the speckle signal traverses less than 5 cm from the aperture or the lens to the optical detector; …
in combination with the other limitations.
As to claim 34, the prior art of record, taken either or in combination, fails to disclose or render obvious:
A wearable device, comprising: an optical speckle receiver, comprising: an optical detector; and an array of apertures, or an array of lenses, wherein the array of apertures or the array of lenses is spaced apart from the optical detector by less than 5 cm and is configured to be positioned between the optical detector…
in combination with the other limitations.
The closest prior art found that pertains to the invention, with emphasis added, is McFarlane, Wakita, Frisken and Shimada. However, the prior art fail to teach, suggest or render obvious the entire invention as claimed.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled "Comments on Statement of Reasons for Allowance."
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicants’ disclosure:
https://en.wikipedia.org/wiki/Speckle_(interference) (which appears to be relevant to the rejection of claim 19)
The examiner has pointed out particular references contained in the prior art of record in the body of this action for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. Applicant should consider the entire prior art as applicable as to the limitations of the claims. It is respectfully requested from the applicant, in preparing the response, to consider fully the entire references as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMED K AMARA whose telephone number is (571)272-7847. The examiner can normally be reached on Monday-Friday: 9:00-17:00
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tarifur Chowdhury can be reached on (571-272-2287. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Mohamed K AMARA/
Primary Examiner, Art Unit 2877
Prosecution Insights