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 .
Double Patenting
1. 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 claims at issue 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); and 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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2. Claims 25, 27-32, 34, 36-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of US. Patent 12265056, respectively. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Both claim features of the instant application 19/068816 and prior US. Pat. 12265056 can be compared as:
Instant Application 19/068816
US. Pat. 12265056
Claim 25
Claim 1
Claim 27
Claim 2
Claim 28
Claim 5
Claim 29
Claim 6
Claim 30
Claim 7
Claim 31
Claim 2
Claim 32
Claim 15
Claim 34
Claim 15
Claim 36
Claim 2
Claim 37
Claim 5
Claim 38
Claim 6
Claim 39
Claim 7
Claim 40
Claim 15
Examiner Notes
3. Examiner cites particular paragraphs, columns and line numbers in the references as applied to the claims below 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. It is respectfully requested that, in preparing responses, the applicant fully consider the references in entirety 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.
Claim Rejections - 35 USC § 102
4. 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.
5. Claims 25-41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moulds et al. (US-20170011899; hereinafter “Moulds”).
Regarding claim 25, Moulds discloses a method of analysing ions comprising:
providing ions of an analyte molecule to a mass or mobility spectrometer with an intensity
that varies with time as a peak (providing ions to the spectrometer with an intensity that varies with time as a peak, as shown in Figs. 3AC-4AB and paragraphs [180-181]);
varying an operational parameter of the spectrometer with time such that ions in the peak are subjected to different conditions at different times, wherein the operational parameter is varied in a plurality of cycles, and wherein the operational parameter is varied between different values during each of the cycles (varying the value of an operational parameter of the spectrometer such that it has different values during the different acquisition periods and such that the spectral data obtained for a given ion varies depending on the value of the operational parameter; and associate the spectral data obtained in each acquisition period with its respective operational parameter value(s) so as to form associated data for each acquisition period, see paragraph [135] and claim 31);
mass or mobility analysing the ions using the spectrometer so as to obtain spectral data for each of said different values of the operational parameter (associate the spectral data obtained in each acquisition period with its respective operational parameter value(s) so as to form associated data for each acquisition period, see [135] and claim 31); and
summing the spectral data obtained for the same value of the operational parameter in the
plurality of cycles so as to obtain summed spectral data for each of the values of the operational
parameter (only combining/integrating, summing or averaging spectral data obtained in different acquisition periods that correspond to the same operational parameter value or that correspond to the same range of operational parameter values, see [0045-46] and claim 17).
Regarding claim 26, Moulds discloses the method of claim 25, wherein said mobility spectrometer is a differential ion mobility spectrometer in which a time-varying electric field is applied SO as to cause a time-averaged movement of the ions in a first direction and a static electric field is applied so as to urge ions in a direction opposite to the first direction, wherein said operational parameter that is varied with time is the magnitude of the static electric field (see [0146]). Regarding claim 27, Moulds discloses the method of claim 25, wherein summing the spectral data obtained for the same value of the operational parameter in the plurality of cycles so as to obtain summed spectral data for each of the values of the operational parameter comprises summing only the spectral data obtained from ions in part of the peak (see [0046, 166, 197]).
Regarding claim 28, Moulds discloses the method of claim 25, comprising normalising the intensity of the spectral data for each value of the operational parameter by the number of times that value was used when obtaining the summed spectral data (see [00161]).
Regarding claim 29, Moulds discloses the method of claim 25, comprising performing said plurality of cycles x times over the peak, wherein x is selected from the group consisting of: ≥ 2; ≥ 3; ≥ 4; ≥ 5; ≥ 6; ≥ 7; ≥ 8; ≥ 9; ≥ 10; ≥ 15; ≥ 20; ≥ 25; ≥ 30; ≥ 35; ≥ 40; or ≥ 45 (see at least in [0072-73, 201]).
Regarding claim 30, Moulds discloses the method of claim 25, comprising performing each cycle in a timescale selected from: ≤ 15 s; ≤ 14 s; ≤ 13 s; ≤ 12 s; ≤ 11 s; ≤ 10 s; ≤ s; ≤ s; ≤ 7 s; ≤ 6 S; or 5 s (see at least in [0205]).
Regarding claim 31, Moulds discloses the method of claim 25, wherein a separator is used to provide the ions of an analyte molecule to a mass or mobility spectrometer with an intensity that varies with time as a peak (see [0166, 182, 201]).
Regarding claim 32, Moulds discloses the method of claim 31, wherein the separator separates different analyte molecules in a sample and these separated analyte molecules are then ionised as they elute from the separator (see [0166, 182, 201]).
Regarding claim 33, Moulds discloses the method of claim 31, wherein the separator is a liquid chromatography (LC) separator, a gas chromatography (GC) separator, a size-exclusion chromatography (SEC) separator, an ion exchange chromatography (IEX) separator, or a capillary electrophoresis (CE) separator (see at least in [0056, 158, 166]).
Regarding claim 34, Moulds discloses an instrument for analysing ions comprising: a separator (a plurality of analytes may elute from a liquid chromatography separator, in [00166] and claim 3) for providing ions of an analyte molecule with an intensity that varies with time (providing ions to the spectrometer with an intensity that varies with time as a peak, as shown in Figs. 3AC-4AB and paragraphs [180-181]); a mass or mobility spectrometer (a spectrometer, in [0016]) for determining the mass to charge ratio or mobility of the ions (….the spectral data may be filtered according to the mass to charge ratio and it may be desired to select or extract spectral data for one or more desired mass to charge ratios, or a range of desired mass to charge ratios, wherein that spectral data is from one or more acquisition periods that represent the optimum operational parameter(s) for the desired mass to charge ratio(s), see [0051, 0064, 108]); and
control circuitry (a controller in [0119]) arranged and configured to:
(i) vary an operational parameter of the spectrometer with time such that ions in the peak are subjected to different conditions at different times, wherein the operational parameter is varied in a plurality of cycles, and wherein the operational parameter is varied between different values during each of the cycles (a controller configured to: vary the value of an operational parameter of the spectrometer such that it has different values during the different acquisition periods and such that the spectral data obtained for a given ion varies depending on the value of the operational parameter; and associate the spectral data obtained in each acquisition period with its respective operational parameter value(s) so as to form associated data for each acquisition period; see [0135]);
(ii) mass or mobility analyse the ions using the spectrometer so as to obtain spectral data for each of said different values of the operational parameter (associate the spectral data obtained in each acquisition period with its respective operational parameter value(s) so as to form associated data for each acquisition period, see [135] and claim 31); and
(iii) sum the spectral data obtained for the same value of the operational parameter in the plurality of cycles so as to obtain summed spectral data for each of the values of the operational parameter (only combining/integrating, summing or averaging spectral data obtained in different acquisition periods that correspond to the same operational parameter value or that correspond to the same range of operational parameter values, see [0045-46] and claim 17).
Regarding claim 35, Moulds discloses the instrument of claim 34, wherein said mobility spectrometer is a differential ion mobility spectrometer configured to apply a time-varying electric field so as to cause a time- averaged movement of the ions in a first direction and configured to apply a static electric field so as to urgc ions in a direction opposite to the first direction, and wherein the control circuitry is arranged and configured to vary the magnitude of the static electric field as said operational parameter that is varied with time (see at least in [0146]).
Regarding claim 36, Moulds discloses the instrument of claim 34, wherein when summing the spectral data obtained for the same value of the operational parameter in the plurality of cycles so as to obtain summed spectral data for each of the values of the operational parameter, the control circuitry is arranged and configured to sum only the spectral data obtained from ions in part of the peak (see [0046, 166, 197]).
Regarding claim 37, Moulds discloses the instrument of claim 34, wherein when obtaining the summed spectral data the control circuitry is further arranged and configured to normalise the intensity of the spectral data for each value of the operational parameter by the number of times that value was used (see [00161]).
Regarding claim 38, Moulds discloses the instrument of claim 34, wherein the control circuitry is arranged and configured to perform said plurality of cycles x times over the peak, wherein x is selected from the group consisting of: > 2; > 3; ≥ 4; ≥ 5; ≥ 6; ≥ 7; ≥ 8; ≥ 9; ≥ 10; ≥ 15; ≥ 20; ≥ 25; ≥ 30; ≥ 35; ≥ 40; or ≥ 45 (see at least in [0072-73, 201]).
Regarding claim 39, Moulds discloses the instrument of claim 34, wherein the control circuitry is arranged and configured to perform each cycle in a timescale selected from: ≤ 15 s; ≤ 14 S; ≤ 13 s; ≤ 12 s; ≤ 11 S; ≤ 10 s; <9 ≤ S; ≤ 8 s; ≤ ≤7 S; ≤ s; or 5 S (see at least in [0205]).
Regarding claim 40, Moulds discloses the instrument of claim 34, wherein the separator separates different analyte molecules in a sample, and wherein the instrument further comprises an ioniser that ionises the separated analyte molecules as they elute from the separator (see [0166, 182, 201]).
Regarding claim 41, Moulds discloses the instrument of claim 34, wherein the separator is a liquid chromatography (LC) separator, a gas chromatography (GC) separator, a size-exclusion chromatography (SEC) separator, an ion exchange chromatography (IEX) separator, or a capillary electrophoresis (CE) separator (see at least in [0056, 158, 166]).
Prior Art of Record
6. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Green (US Pub. 20160126074) discloses a method of mass or ion mobility spectrometry (see specification for more details). Richardson (US Pub. 20140005954) discloses method of processing multidimensional data acquired from analytical equipment (see specification for more details).
Conclusion
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANG LE whose telephone number is (571)272-9349. The examiner can normally be reached on Monday thru Friday 7:30AM-5:00PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Huy Phan can be reached on (571) 272-7924. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THANG X LE/Primary Examiner, Art Unit 2858
9/27/2026
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