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
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Germany (DE 102024101872.0) on January 23, 2024. It is noted, however, that applicant has not filed a certified copy of the German application as required by 37 CFR 1.55.
Drawings
The drawings were received on October 14, 2025. These drawings are accepted.
Specification
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
The disclosure is objected to because of the following informalities:
a) Applicant’s specification paragraph [0004]1 recites
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The Examiner advises that it is best to avoid referring to claim numbers in the specification as claims may be amended or canceled during examination or renumbered if allowed. If applicant continues to mention claims numbers Applicant should check for their continued reference as examination continues.
b) in Applicant’s specification paragraph [0061] the brief description of “Fig. 3” is objected to because there is no Fig. 3, but a Fig. 3a and a Fig. 3b. "The examiner should see to it that the figures are correctly described in the brief description of the drawing, that all section lines used are referred to, and that all needed section lines are used. If the drawings show Figures 1A, 1B, and 1C and the brief description of the drawings refers only to Figure 1, the examiner should object to the brief description, and require applicant to provide a brief description of Figures 1A, 1B, and 1C . [italicizing by the Examiner]” See MPEP 608.01(f).
c) at the end of the Abstract “(Fig. 4)” should be deleted.
d) in Applicant’s specification paragraph [0069] “outlet-side opening Ő.e” should be changed to -- outlet-side opening Ő.a --.
e) Applicant’s specification paragraph [0082] states, “In Fig. 3A, the electrolyte humidity Ef assumes the value 0, i.e. an average value. The ambient temperature is -5°C or +45°C. At a high ambient temperature, a high maximum current intensity Imax is achieved, but the current intensity decreases very quickly. [italicizing by the Examiner]” Also, specification paragraph [0083] states, “At a high electrolyte humidity Ef, similar to a high ambient temperature, a high maximum current intensity Imax is achieved, but the current intensity I rapidly decreases again. [italicizing by the Examiner]” However, Fig. 3A shows that at a low ambient temperature (-5 °C), a high maximum current intensity Imax is achieved with the current intensity decreasing very quickly.
f) Applicant’s specification paragraph [0096], referring to Fig. 5, states, “In addition, the time period Tstandard is plotted, which is the time period that extends between the following two time points: - the time point ti,40, at which the current intensity curve I(t) becomes for the first time greater than 40% of the maximum value Imax, and- the time point td,30, at which the current intensity curve I(t) falls again below 30% of the maximum value Imax.” There is no “Tstandard” in Fig. 5. The indicated time interval is labeled Tnorm.
Appropriate correction is required.
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 limitations are: “A test device for testing an electrochemical sensor; . . . . [highlighting by the Examiner]” and “a control unit configured to determine a current intensity curve, . . . .” in claim 1.
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they 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 these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitations to avoid 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 limitations recite 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 Objections
Claims 12, 4, and 6 are objected to because of the following informalities:
a) claim 1 recites
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This limitation may be read as indicating a method step; however, claim 1 is a device claim. Thus, the statutory class of invention is not clear. If this claim were published in a patent as is, the public would not know whether they would have to perform this method step in order to infringe the claimed device. The Examiner suggests that Applicant use “configured to” or “adapted to “phrasing to describe this claim feature. For example, -- wherein the test device [or electrochemical sensor] is configured so that when a target gas, as a component of a gas sample is in the measuring chamber, it induces an electrochemical reaction which causes an electric current to flow between the first and second electrodes; . . . .—
b) in claim 4, lines 1-2, “wherein characterized in that” should be replaced with either just – wherein – or just -- characterized in that --.
c) in claim 6, line 27, “unity” should be – unit --.
d) in claim 6, line 29, “to applying” should be – to apply --.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Note that dependent claims will have the deficiencies of base and intervening claims.
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.
Claims 1-14 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:
a) Claim 1 limitation “A test device for testing an electrochemical sensor; . . . . [highlighting by the Examiner]” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The structure described in the specification for the test device is too vague as to the structural relationship between the test device and the electrochemical sensor. Regarding the structure of the test device the specification only mentions, similarly as in claim 1, “[0011] The test device according to the disclosure comprises a signal-processing control unit. The control unit is configured to determine an actual current intensity curve (current measurement curve).” One reading claim 1 would understand the test device to be either external and connected to the electrochemical sensor (that is a physically distinct device) during testing to the or internal to electrochemical sensor, yet a component thereof, yet having distinct boundaries (for example, a housing or containing means) from the other components within the electrochemical sensor. However, from Applicant’s Figures 2 and 3 neither the electrochemical sensor (12) nor the sensor arrangement (50) has its own control unit. So, the control unit (6) in Applicant’s Figure 6 is a dual-purpose control unit controlling both the test device and the electrochemical sensor. It is not clear to what extent the test device claimed claim 1 is a separate device for the electrochemical sensor. Put another way, it is not clear what structure the test device includes that is not in common with the electrochemical sensor to be tested. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
b) Claim 1 limitation “a control unit configured to determine a current intensity curve, . . . .” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The structural relationship for the control unit in claim 1 is not consistent with Applicant’s Figures 1 and 2. Claim 1 requires “. . . ., and wherein the test device comprises a control unit configured to determine a current intensity curve, . . . .” However, Applicant’s Figure 2 shows only a single control unit (60) directly connected to the sensor arrangement (50) with no test device shown in either Figure 1 as being part of or otherwise associated with the analyzer (100) nor is another control unit shown in Figure 2 as being part of the sensor arrangement (50). Applicant is requested to clarify the struct rail relationship between the control unit of the test device to the electrochemical sensor to be tested. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
c) claim 1 recites
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It is not clear whether the plurality of curve parameters and a computer-evaluable humidity function are provided to the test device or to the electrochemical sensor.
d) claim1 recites
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A plurality of curve parameters and a computer-evaluable humidity function are mathematical equations and/or numerical data. It is not clear to what physical structure of the test device or of the electrochemical sensor these mathematical equations are provided to or possibly could be provided to.
e) claim 1 recites
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Ther is no object for the verb “determining” in line 20 of claim 1 (highlighted above). Does Applicant mean
- and wherein the control unit is further configured to determine the current humidity of the electrolyte (Ef) by having the control unit (6) be configured to determine, for each curve parameter, a value that the curve parameter assumes for the current intensity curve and by applying the computer-evaluable humidity function to the parameter values. -- ?
f) claim 1 recites
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It is not clear what is meant by the phrase “a value that the curve parameter assumes for the current intensity curve [italicizing by the Examiner]”. Applicant is requested to provide two or three examples of such assuming.
g) claim 6 recites
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A plurality of curve parameters and a computer-evaluable humidity function are mathematical equations and/or numerical data. It is not clear to what physical structure of the analyzer these mathematical equations are provided to or possibly could be provided to.
h) claim 6 recites
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It is not clear what is meant by the phrase “a value that the curve parameter assumes for the current intensity curve [italicizing by the Examiner]”. Applicant is requested to provide two or three examples of such assuming.
i) claim 7 recites
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To what analyzer component is the concentration function given?
j) claim 9 recites
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A plurality of curve parameters and a computer-evaluable humidity function are mathematical equations and/or numerical data. It is not clear to what physical structure of the electrochemical sensor or some other device these mathematical equations are provided to or possibly could be provided to.
k) claim 9 recites
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It is not clear what is meant by the phrase “which value the curve parameter assumes for the current intensity curve [italicizing by the Examiner]”. Applicant is requested to provide two or three examples of such assuming.
l) claim 11 recites
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It is not clear what is meant by the phrase “which value the curve parameter assumes for the current intensity curve [italicizing by the Examiner]”. Applicant is requested to provide two or three examples of such assuming.
m) claim 14 recites
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A plurality of curve parameters and a computer-evaluable humidity function are mathematical equations and/or numerical data. It is not clear to what physical structure of the test device, the electrochemical sensor, or some other device these mathematical equations are provided to or possibly could be provided to.
n) claim 14 recites
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It is not clear what is meant by the phrase “a value that the curve parameter assumes for the current intensity curve [italicizing by the Examiner]”. Applicant is requested to provide two or three examples of such assuming.
Allowable Subject Matter
Claims 1, 6, 9, and 11 would be allowable if rewritten or amended to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 2-5, 7, 8, 10, 12, and 13 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include 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:
a) in clam 1 the combination of limitations requires the following underlined features
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Mu et al. US2021/0172901 A1 (hereafter “Mu”) discloses a test device for testing an electrochemical sensor (as a first matter note the Applicant’s specification and claim 1 are vague as to what extent the test device is physically distinct from the electrochemical sensor to be tested. As such, auxiliary
electrode 218 in Mu Figures 2 and 4a, which is reactive to humidity, along the portion of the processing circuitry on PCB 116, which is configured to determine the auxiliary current due to a drift in humidity, may be construed as being part of the test device. See also the last sentence in paragraph [0056], paragraph [0066], the last sentence in paragraph [0071], and paragraphs [0009] and [0010].);
the electrochemical sensor comprising a measuring chamber configured to take up a gas sample (the unlabeled empty space inside sensor body 102 in Figure 2. Note that capillary 206 can act as a gas inlet such that air mixture including a target gas can inflow into the sensor body. See paragraph [0057].), a first electrode (sensing electrode 216. See Figures 2 and 3, and
paragraph [0052].), a second electrode (counter electrode 222. See Figures 2 and 3, and paragraph [0052].), and an ionically conductive electrolyte positioned between the first and second electrodes (this feature may be inferred from the following, “To this extent, in the EGS, the cathode and the anode can be coupled, operably coupled, fluidically coupled, and/or chemically coupled using an ionically conducting electrolyte.[italicizing by the Examiner]” See paragraph [0040]. ), the electrolyte having a humidity that varies over time (this feature may be inferred form paragraphs [0043] and [0044]);
wherein a target gas, as a component of a gas sample in the measuring chamber, induces an electrochemical reaction which causes an electric current to flow between the first and second electrodes (see paragraphs [0063] and [0094]);
and wherein the test device comprises a control unit configured to determine a current intensity curve, the current intensity curve being the time course of the intensity of the current caused to flow by the electrochemical reaction; and wherein the control unit is further configured to determine a current humidity of the electrolyte (such a control unit may be inferred form paragraphs [0070], [0071], [0078], and claim 19. Note that although Mu does not indicate whether the current intensity curve will have “a maximum current intensity”. This would be expected in light of Benard Stock US 5,611,896 (hereafter ‘Stock”) Figure 1, which shows typical profiles of current intensity curves for an electrochemical amperometric gas sensor. See also Stock col. 3:55 -col. 4:12 and col. 1:20-45.).
However, in contrast to the test device of Applicant’s claim 1 Mu does not disclose “wherein a plurality of curve parameters and a computer-evaluable humidity function are provided; wherein each curve parameter is a parameter of a time course of a current intensity; wherein the computer-evaluable humidity function describes the humidity of the electrolyte as a function of the curve parameters; . . . . the control unit (6) is designed to determine, for each curve parameter, a value that the curve parameter assumes for the current intensity curve and by applying the computer-evaluable humidity function to the parameter values.” Instead, as best understood by the Examiner, the test device of Mu is configured to treat the current intensity curve attributed to humidity variation (as measured by the auxiliary electrode 218) to be like a noise or background signal to be subtracted from the response signal measured by the first electrode and the second electrode from electrochemical reaction involving the target gas. See Mu paragraphs [0010], [0063], and [0096], and claim 8. It should be noted that although Stock does disclose a test device for an electrochemical gas sensor that determines a plurality of curve parameters of a time course of a current intensity that has a maximum, the plurality of curve parameters is not related to humidity of the electrolyte, but to overall deterioration of the gas sensor. See Stock col. 1:20-5 and col. 2:16-36.
b) claims 2-5 depend directly or indirectly from claim 1, which is allowable over prior art of record.
c) in independent clam 6 the combination of limitations requires the following underlined features
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The discussion above regarding the allowab8iltyy of claim 1 applies to claim 6 also.
d) claims 7 and 8 each depend from independent claim 6, which is allowable over prior art of record.
e) in independent clam 9 the combination of limitations requires the following underlined features
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The discussion above regarding the allowability of claim 1 applies to claim 9 also.
f) claim 10 depends from claim 9, which is allowable over prior art of record.
g) in independent clam 11 the combination of limitations requires the following underlined features
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The discussion above regarding the allowability of claim 1 applies to claim 11 also.
h) claims 12 and 13 each depend from claim 11, which is allowable over prior art of record.
i) in independent clam 14 the combination of limitations requires the following underlined features
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The discussion above regarding the allowability of claim 1 applies to claim 14 also.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER STEPHAN NOGUEROLA whose telephone number is (571)272-1343. The examiner can normally be reached on Monday - Friday 9:00AM-5:30 PM 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, Luan Van can be reached on 571 272-8521. 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.
/ALEXANDER S NOGUEROLA/ Primary Examiner, Art Unit 1795
1 Refences to Applicant’s specification are to the clean copy of Applicant’s substitute specification of October 14, 2025.
2 All claim references are to Applicant; claims in the preliminary Amendment of October 14, 2025, which is the most recent claim set.
Prosecution Insights