DETAILED ACTIONNotice 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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “wherein the collimators are supported in place by the dichroic mirrors” of claim 15 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 10 is objected to because of the following informalities:
The end of the claim reads “and combination” without stating which combinations. It is assumed to have been meant to read “and any combinations thereof.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 10 and 13-20 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 claim 10, the limitation “wherein the environment comprises a space selected from the group consisting of ambient fluid within a residential area, a landfill, a construction site, a gas distribution facility, a gas storage facility, an area where first responders have been summoned, an industrial area, a public area, any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured, and combinations” is indefinite because it is unclear when infringement begins. For example, under the limitation “an area where first responders have been summoned” if the method was performed while one was actively on the phone with authorities at which point would infringement occur: when the call is made, when a dispatch request is submitted, when the authorities are actively in transit, or after responder arrive? Additionally for the limitation “any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured” if the method is performed because the gas is suspected but it is not sensed, detected, or measured then there is no infringement. In this case infringement could only be determined after the method is performed. These ambiguities render the claim indefinite.
Regarding claim 10, the claim limitation “wherein the environment comprises a space selected from the group consisting of ambient fluid within a residential area, a landfill, a construction site, a gas distribution facility, a gas storage facility, an area where first responders have been summoned, an industrial area, a public area, any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured, and combinations” is indefinite insofar as the examiner is unclear about the structure of the group and it is impossible to determine the intending scope of the structure of the group in claim 1. For example: the group can be interpreted to be (1) a single list so the limitation includes “any area.” It can also be interpreted to be (2) a list within a list wherein the first list is: “ambient fluid within a residential area, a landfill, a construction site, a gas distribution facility, a gas storage facility, an area where first responders have been summoned, an industrial area, a public area,” and the second list is “any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured” . Therefore, it is indefinite.
Regarding claim 13, the term “a sensor strategically disposed in a path of the emission of light” in claim 13 is a relative term which renders the claim indefinite. The term “strategically disposed” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 14-20 are dependent on claim 13 and are rejected for the same reason.
Regarding claim 18, the limitation “a handle selectively held by an operator when the system is transported to and used in remote environments” is indefinite because it is a product and process in the same claim (see MPEP 2173.05(p)) This limitation is unclear when infringement begins because it is unclear if infringement occurs when one creates an apparatus that allows the user to transport via a handle and operated or when the transportation and use in a remote environment actually occurs. These ambiguities render the claim indefinite.
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) 1-3, 6-11, 13-14, and 18-20 is/are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Jiang US 2023/0096813.
Regarding claim 1, Jiang discloses a method of evaluating an environment comprising: irradiating a sample volume of the environment with light at a reference wavelength (#104 first IR; para. 0086); irradiating a sample volume of the environment with light at a test wavelength (#108 second IR), the test wavelength being a wavelength that is absorbed by an analyte gas (para. 0070) and having an intensity that is modulated to be out of phase with an intensity of the light at the reference wavelength (para. 0108); sensing an intensity of the light at the reference wavelength that is transmitted through the sample volume to define a sensed reference light intensity (fig. 3b; para. 0096); sensing an intensity of the light at the test wavelength that is transmitted through the sample volume to define a sensed test light intensity (fig. 3b; para. 0096); comparing the sensed reference light intensity with the sensed test light intensity (fig. 3a; para. 0096); and identifying the presence of the analyte gas in the environment based on the step of comparing the sensed reference light intensity with the sensed test light intensity (fig. 3a; para. 0096).
Regarding claim 2, Jiang discloses wherein the step of comparing the sensed reference light intensity with the sensed test light intensity comprises identifying a change over time of a difference between the sensed reference light intensity and the sensed test light intensity (fig. 3a; para. 0096).
Regarding claim 3, Jiang discloses wherein the analyte gas comprises a first analyte gas (first target gas), the light at the test wavelength comprises a first light (#108 second IR), and the test wavelength comprises a first test wavelength (para. 0070), the method further comprising, identifying a second analyte gas present in the sample volume of the environment by irradiating the sample volume of the environment with a second light that is at a second test wavelength, wherein the first light comprises light generated by a first light source and the second light comprises light generated by a second light source having the same characteristics as the first light source (para. 0029, 0140, 0147-0148; claim 13).
Regarding claim 6, Jiang discloses wherein the light at the test wavelength comprises a first light at the test wavelength and the test wavelength comprises a first test wavelength, the method further comprising irradiating the sample volume of the environment with a plurality of lights at a plurality of test wavelengths, each of the plurality of test wavelengths being different from the first test wavelength and being different from any of the other plurality of test wavelengths, and each of the plurality of lights having an intensity that is modulated to be out of phase with an intensity of the light at the reference wavelength (para. 0029, 0140, 0147-0148; claim 13).
Regarding claim 7, Jiang discloses controlling irradiation of the sample volume so that over a designated period of time the sample volume is irradiated with the first light at the test wavelength or one of the plurality of lights at the plurality of test wavelengths light (figs. 4-5; para. 0097-0098).
Regarding claim 8, Jiang discloses wherein the sample volume is continuously irradiated with the light at the reference wavelength (figs. 4-5; para. 0097-0098).
Regarding claim 9, Jiang discloses wherein each of the plurality of test wavelengths being a wavelength that is absorbed by a different analyte gas (para. 0029, 0140, 0147-0148; claim 13).
Regarding claim 10, Jiang discloses wherein the environment comprises a space selected from the group consisting of ambient fluid within a residential area, a landfill, a construction site, a gas distribution facility, a gas storage facility, an area where first responders have been summoned, an industrial area, a public area, any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured, (definitionally an area in which the gas is detected, fig. 3, is “any area, space or place where the presence and/or quantity of a designated substance is being sensed, detected, or measured”) and combinations.
Regarding claim 11, Jiang discloses wherein the analyte gas comprises a gas selected from the group consisting of a noxious gas, carbon monoxide, carbon dioxide, hydrocarbon gases, methane, ethane, and combinations (para. 0060, 0104).
Regarding claim 13, Jiang discloses a system for evaluating an environment comprising: a reference light source emitting a reference light having a time varying intensity (#104 first IR; para. 0086); a test light source emitting a test light having a time varying intensity modulated to be out of phase with the reference light and having a wavelength that is within an absorption band of an analyte gas (# 108 second IR; para. 0108); a space in which a sample volume of the environment is contained (figs. 1, 6, 7; para. 0093); an optical system comprising, an inlet in the path of the reference light, an inlet in the path of the test light, and an exit (figs. 1, 6, 7; para. 0093); an emission of light comprising reference light and test light, which projects from the exit and passes through the space and the sample volume of the environment (figs. 1, 6, 7; para. 0093); and a sensor strategically disposed in a path of the emission of light and on a side of the space opposite the exit (figs. 1, 6, 7; para. 0093).
Regarding claim 14, Jiang discloses wherein the sensor is responsive to an intensity of light, the system further comprising a controller configured to receive signals from the sensor representing light intensity and identify the presence of an analyte gas in the sample volume (fig. 3 implies a controller to create the graph).
Regarding claim 18, Jiang discloses a housing covering other elements of the system, a power supply in the housing, and a handle selectively held by an operator when the system is transported to and used in remote environments (para. 0092-0093; a handle is known infrastructure in the art and would be envisioned in the listed infrastructure).
Regarding claim 19, Jiang discloses wherein the sample volume of the environment is contained in a gas cell comprising a container selected from the group consisting of a low concentration gas cell and a high concentration gas cell (para. 0092-0093; a low concentration gas cell and a high concentration gas cell is known infrastructure in the art and would be envisioned in the listed sample chamber).
Regarding claim 20, Jiang discloses wherein the test light source and test light comprise a first test light source and a first test light, the system further comprising a plurality of test light sources from which a plurality of test lights are selectively emitted, wherein the first test light and the plurality of test lights are each sequentially emitted and are modulated to be out of phase with the reference light, and wherein the reference light is continuously emitted (para. 0029, 0140, 0147-0148; claim 13).
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 4-5, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Jiang US 2023/0096813.
Regarding claim 4, Jiang does not specifically teach the first light and the second light are formed from an integral light source. However, the fact that the parts are integral is not sufficient by itself to patentably distinguish over an otherwise old device unless there are new or unexpected result (MPEP 2144). Also, making the parts integral would have been obvious to one of ordinary skill in the art at the time the invention was made because reducing number of parts would decrease the cost of the device and reduce the manufacturing cost and process.
Regarding claim 5, Jiang teaches wherein absorption bands of the first and second analyte gases overlap (para. 0002, 0069-0070).
Regarding claim 15, Jiang teaches wherein the optical system comprises dichroic mirrors (figs. 1, 6, 7 #638, 758) and collimators for collimating the reference light emitted from the reference light source and the test light from the test light source onto the dichroic mirrors (figs. 1, 6, 7 #630, 634; para. 0117), and wherein the collimators are supported in place by the dichroic mirrors.
Jiang does not explicitly disclose wherein the collimators are supported in place by the dichroic mirrors, however, it has been judiciarily determined that rearrangement of parts has been obvious to one of ordinary skill in the art (MPEP 2144.04.IV.C). Rearrangement of parts is insufficient to establish patentability over the prior art of record unless it changes the operation of the device in some unexpected way. Since this device appears to operate in a similar manner to the prior art device, the rearrangement of parts is not of patentable significance.
Regarding claim 16, Jiang teaches the claim except Jiang does not specifically disclose the first light and the second light are formed from an integral light source. However, the fact that the parts are integral is not sufficient by itself to patentably distinguish over an otherwise old device unless there are new or unexpected result (MPEP 2144). Also, making the parts integral would have been obvious to one of ordinary skill in the art at the time the invention was made because reducing number of parts would decrease the cost of the device and reduce the manufacturing cost and process.
Claims 12 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Jiang US 2023/0096813 in view of Dietrich et al. US 2005/0128486.
Regarding claim 12, Jiang fails to teach wherein the steps of irradiating and sensing are performed using a sensing system that comprises a controller for identifying the analyte gas and a reference vial having a substance in a known concentration, the method further comprising calibrating the sensing system by irradiating the reference cell with the reference and test lights, sensing the intensity of the test lights being transmitted through the reference cell, and adjusting the sensed test and reference light intensities transmitted through the sample volume based on sensed intensities being transmitted through the reference cell.
Dietrich teaches that it is known in the art that scanning lasers require several reference gas cells (or vials) and continuous calibration (para. 0007) for the purpose of improving accuracy.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have wherein the steps of irradiating and sensing are performed using a sensing system that comprises a controller for identifying the analyte gas and a reference vial having a substance in a known concentration, the method further comprising calibrating the sensing system by irradiating the reference cell with the reference and test lights, sensing the intensity of the test lights being transmitted through the reference cell, and adjusting the sensed test and reference light intensities transmitted through the sample volume based on sensed intensities being transmitted through the reference cell as taught by Dietrich in the method of Jiang for the purpose of improving accuracy.
Regarding claim 17, Jiang fails to teach a calibration system comprising an arm that is selectively pivotable and a reference vial containing an analyte gas of a known concentration, wherein the reference vial is coupled to the arm and selectively pivoted into the path of the emission of light.
Dietrich teaches that it is known in the art that scanning lasers require several reference gas cells (or vials) and continuous calibration (para. 0007) for the purpose of improving accuracy.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a calibration system comprising an arm that is selectively pivotable and a reference vial containing an analyte gas of a known concentration, wherein the reference vial is coupled to the arm and selectively pivoted into the path of the emission of light as taught by Dietrich in the system of Jiang for the purpose of improving accuracy.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Richard Toohey whose telephone number is (703)756-5818. The examiner can normally be reached Mon-Fri: 7:30am – 5pm.
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/RICHARD O TOOHEY/Examiner, Art Unit 2884
/UZMA ALAM/Supervisory Patent Examiner, Art Unit 2884
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