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 .
Claim Objections
Claims 48-51 and 59-60 are objected to because of the following informalities:
As for claim 48, in line 1 of the claim, the phrase “wherein Savitzky Golay second derivative” should be amended to read “wherein a Savitzky Golay second derivative”. Additionally, in lines 2-3 of the claim, the phrase “at which there is greatest difference” should be amended to read “at which there is a greatest difference”.
As for claim 49, in lines 1-2 of the claim, the phrase “wherein competitive adaptive reweighted sampling (CARS) algorithm, is used” should be amended to read “wherein a competitive adaptive reweighted sampling (CARS) algorithm is used”.
As for claim 50, in line 2 of the claim, the phrase “using one or more filter wheel” should be amended to read “using one or more filter wheels”.
As for claim 51, in line 7 of the claim, the acronym NIR needs to be defined.
As for claim 59, in line 1 of the claim, the phrase “further comprising one or more filter wheel” should be amended to read “further comprising one or more filter wheels”.
As for claim 60, in line 7 of the claim, the acronym NIR needs to be defined.
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 51, 52, 58, and 60 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.
As for claims 51 and 60, each claim recites that the filter wheel comprises “a rotation at specific RPM with high accuracy”. However, it is unclear what structural aspect of the filter wheel “a rotation” refers to. Is this the rotation of the wheel? Is it a specific element that causes the wheel to rotate? Is it some other “rotation” that has the specific RPM with high accuracy claimed? Clarification is required. As suggested by the specification on page 9 (as discussed in the following rejection), the examiner will interpret the limitation to mean that the filter wheel rotates.
The terms “specific” and “high” in claims 51 and 60 are relative terms which renders the claim indefinite. The terms “specific” and “high” are 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.
With regard to the above limitation, the examiner turns to the specification to ascertain the requisite degree of what is meant by the phrases “specific RPM” and “high accuracy” in the limitation “a rotation at specific RPM with high accuracy”. However, the specification does not appear to provide that degree. Page 9 of the specification only states, “Filter wheel 34 may have a permanent rotation at specific RPM with high accuracy”. As a result, there is no definition in the specification which states what the RPM is for the rotation of the filter wheel, and what level of accuracy amounts to the claimed “high” accuracy. As a result, the metes and bounds of the claimed limitation cannot be ascertained, and the claim is rejected as indefinite.
The term “pure” in claims 51 and 60 is a relative term which renders the claim indefinite. The term “pure” 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.
With regard to the above limitation, the examiner turns to the specification to ascertain the requisite degree of what is meant by the phrase “one or more pure NIR lights”. However, the specification does not appear to provide that degree. Page 9 of the specification only states “and two pure NIR lights 32 to provide the correct illumination”. As a result, there is no definition in the specification which states what makes an NIR light “pure” in order to provide the disclosed “correct illumination”. Is it the type of light source used? Does it include other optical elements to make the light “pure”? Does it involve the specific NIR wavelength being emitted by the source? As a result, the metes and bounds of the claimed limitation cannot be ascertained, and the claim is rejected as indefinite.
Claim 52 is rejected by virtue of its dependence on claim 51, thereby containing the limitations of the claim on which it depends.
As for claim 58, the claim sets forth the further limitation of claim 55, and includes a rotating glass plate to present a plurality of the seeds in a single file array. However, claim 55, the claim on which claim 58 depends, already includes a rotating glass disc. As a result, it is unclear as to whether or not the rotating glass plate of claim 58 is the same element as the rotating glass disc of claim 55, or if these are different elements entirely. The examiner notes that if these are indeed different elements, this limitation does not appear to be present in the drawings; that issue may give rise to a drawing objection later in examination.
Claim Rejections - 35 USC § 102
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.
Claims 45-49 and 53-54 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mishra et al (“Application of SWIR hyperspectral imaging coupled with chemometrics for rapid and non-destructive prediction of Aflatoxin B1 in single kernel almonds”).
Regarding claim 45, Mishra discloses a method for classifying an edible seed comprising illuminating the edible seed with at least one wavelength of electromagnetic radiation (see section 2.2, hyperspectral image acquisition, on page 3), wherein the at least one wavelength of electromagnetic radiation is partially reflected by the seed including one or more specific signal from aflatoxin if it is present and selected from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm (see section 3.1 on page 7, which discloses at certain wavelengths, reflectance of control kernels was lower as compared to contaminated kernels due to an increase in the level of aflatoxin), detecting the reflected signal to provide a detected aflatoxin signal (see the use of the InGas camera in section 2.2 on page 3, section 3.1 also implies the detection of aflatoxin), comparing the detected aflatoxin signal with a predetermined signal from known concentrations of aflatoxin to provide a first accurate measurement of aflatoxin concentration (see the abstract on page 1 which states, “Reference AFB1 concentration and their association with the spectral data . . .” to allow for determination of aflatoxin concentration), and classifying the edible seed aflatoxin concentration (see section 3.2, pages 7-8).
As for claim 46, Mishra discloses that the images are captured with a hyperspectral camera (InGas camera found in the hyperspectral image acquisition section, section 2.2, page 3).
As for claim 47, Mishra discloses that the images are captured with a multi-spectral camera (a multispectral camera can also be used as per section 3.4, page 8).
As for claim 48, Mishra discloses using a Savitzky Golay second derivative to pre-process spectral data to determine the wavelengths at which there is a greatest difference in the reflectance intensities of control and contaminated seed (see section 3.1 on page 7 describing use of this derivative).
As for claim 49, Mishra discloses using a competitive adaptive reweighted sampling algorithm to remove redundant wavelengths (see section 2.7, page 6).
As for claim 53, Mishra discloses that the seed is an almond kernel (see title and abstract).
As for claim 54, Mishra discloses that the aflatoxin is Aflatoxin B1 (see title and abstract).
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.
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.
Claims 45-47, 50, 53-59, and 61-63 are rejected under 35 U.S.C. 103 as being unpatentable over Martin (WO 2021/134110) in view of Mishra et al (“Application of SWIR hyperspectral imaging coupled with chemometrics for rapid and non-destructive prediction of Aflatoxin B1 in single kernel almonds”).
Regarding claim 45, Martin (Fig. 1) discloses a method for classifying an edible seed comprising illuminating the edible seed held in reservoir 12 with at least one wavelength of electromagnetic radiation from electromagnetic radiation source 18 (see page 6, lines 10-12), wherein the at least one wavelength of electromagnetic radiation is partially reflected by the seed including one or more specific signal from aflatoxin if it is present (see page 6, lines 12-15), detecting the reflected signal to provide a detected aflatoxin signal (“an NIR camera 16 is configured to capture any reflected light” as on page 6, lines 15-16), comparing the detected aflatoxin signal with a predetermined signal from known concentrations of aflatoxin to provide a first accurate measurement of aflatoxin concentration (see page 6, lines 16-19, which discloses that a microprocessor compares the various wavelengths of reflectance to accurately measure any levels of aflatoxin based on comparison with previous concentrations), and classifying the edible seed aflatoxin concentration (see page 6, line 22).
While Martin discloses that various wavelengths of NIR light are captured, Martin fails to disclose that the wavelength is selected from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm.
Mishra, in an application of hyperspectral near infrared imaging for determining aflatoxin content in almonds (see abstract) discloses obvious spectral differences related to aflatoxin in almonds are found around 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm (see section 3.1, spectral characteristics).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select at least one of the NIR wavelengths used in the method of Martin to be from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm as per Mishra, the motivation being that, as discovered by Mishra, at certain wavelengths, reflectance of control kernels was lower as compared to contaminated kernels due to an increase in the level of aflatoxin (see section 3.1, spectral characteristics), making the selection of any of the above wavelengths ideal for identifying aflatoxin in edible seeds. Additionally, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
As for claim 46, Martin discloses using a hyperspectral camera to capture the images (see line 19 of page 6).
As for claim 47, Martin discloses that images are captured with a multi-spectral camera (see section e on page 11).
As for claim 50, while Martin fails to disclose that the wavelengths indicative of an aflatoxin presence are selected using one or more filter wheels, Martin discloses the use of a filter to remove extraneous reflections and to provide the aflatoxin signal (see page 4, lines 7-8), and Mishra contemplates using filter wheels for future endeavors (see section 4, page 9). Additionally, Official notice is taken as to the well known use of filter wheels in optical measuring to be able to select a variety of different wavelengths for illumination or, in this case, detection as needed while eliminating unwanted wavelengths. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a filter wheel to the combination of Martin and Mishra to select wavelengths indicative of an aflatoxin presence, the motivation being to allow for easy selection of wavelengths known to provide strong reflectance of aflatoxin in almonds while eliminating unwanted wavelengths or extraneous reflections as is known to those in the art. Additionally, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
As for claim 53, Martin discloses that the seed is an almond (see section e on page 11, for example).
As for claim 54, Martin discloses that the aflatoxin is Aflatoxin B1 (see section a, page 9).
Regarding claim 55, Martin (Fig. 1) discloses a system for determining when a seed has a concentration of aflatoxin above a threshold value, comprising: a seed reservoir 12; a chute 14 from said reservoir to a rotating glass disc (see page 5, line 3); a plurality of light sources (“at least one electromagnetic radiation source 18” on page 6, line 11 means that there can be a plurality of light sources) configured to emit a light in a wavelength range of 900 nm to 1,700 nm (this is in the NIR band set forth on page 6, line 13); a plurality of cameras 16 configured to each capture a plurality of spectral images of each seed (page 5, line 5 states that there can be a plurality of cameras); and a processor (microprocessor, page 6, line 10) configured to align and segment a spectral cube, determine an average reflectance for each spectral image, compare the average reflectance with a predetermined reflectance threshold value indicative of a presence of an aflatoxin concentration designated to fail a predetermined health standard, and send instructions to a diverter to separate a seed determined to be above the threshold value (see page 5, lines 6-11).
While Martin discloses that various wavelengths of NIR light are captured, Martin fails to disclose that the wavelength is selected from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm.
Mishra, in an application of hyperspectral near infrared imaging for determining aflatoxin content in almonds (see abstract) discloses obvious spectral differences related to aflatoxin in almonds are found around 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm (see section 3.1, spectral characteristics).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select at least one of the NIR wavelengths used in the method of Martin to be from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm as per Mishra, the motivation being that, as discovered by Mishra, at certain wavelengths, reflectance of control kernels was lower as compared to contaminated kernels due to an increase in the level of aflatoxin (see section 3.1, spectral characteristics), making the selection of any of the above wavelengths ideal for identifying aflatoxin in edible seeds. Additionally, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
As for claim 56, Martin discloses using a hyperspectral camera to capture the images (see line 19 of page 6).
As for claim 57, Martin discloses that images are captured with a multi-spectral camera (see section e on page 11).
As for claim 58, Martin discloses a rotating glass plate to present a plurality of the seeds in a single file array (see section e of page 11).
As for claim 59, while Martin fails to disclose that the wavelengths indicative of an aflatoxin presence are selected using one or more filter wheels, Martin discloses the use of a filter to remove extraneous reflections and to provide the aflatoxin signal (see page 4, lines 7-8), and Mishra contemplates using filter wheels for future endeavors (see section 4, page 9). Additionally, Official notice is taken as to the well known use of filter wheels in optical measuring to be able to select a variety of different wavelengths for illumination or, in this case, detection as needed while eliminating unwanted wavelengths. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a filter wheel to the combination of Martin and Mishra to select wavelengths indicative of an aflatoxin presence, the motivation being to allow for easy selection of wavelengths known to provide strong reflectance of aflatoxin in almonds while eliminating unwanted wavelengths or extraneous reflections as is known to those in the art. Additionally, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
As for claim 61, Martin discloses that the seed is an almond (see section e on page 11, for example).
As for claim 62, Martin discloses that the aflatoxin is Aflatoxin B1 (see section a, page 9).
Regarding claim 63, Martin (Fig. 1 and page 4, lines 1-12) discloses a scanning device 10 for classifying an aflatoxin concentration of at least one edible seed comprising a reservoir 12 configured to hold the at least one edible seed, a chute 14, at least one electromagnetic radiation source 18 to illuminate the seed with at least three wavelengths of electromagnetic radiation (see page 4, lines 4-5 for the use of at least three wavelengths), the at least three wavelengths of electromagnetic radiation causing a reflection signal of at least one type of aflatoxin (see page 4, lines 5-6), a camera 16 configured to detect the reflected light at three or more wavelengths (see page 4, line 6-7), a filter to remove extraneous reflections (see page 4, line 7), and to provide the aflatoxin signal (see page 4, line 8); and a microprocessor configured to: compare the detected aflatoxin signal with predetermined signals of known concentration of the at least one type of aflatoxin to provide a first calibrated measurement of aflatoxin concentration, and classify the edible seed relative to the first measured aflatoxin concentration, accurate to +/- 0.16µg (see page 4, lines 8-12).
While Martin discloses that various wavelengths of NIR light are captured, Martin fails to disclose that the wavelength is selected from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm.
Mishra, in an application of hyperspectral near infrared imaging for determining aflatoxin content in almonds (see abstract) discloses obvious spectral differences related to aflatoxin in almonds are found around 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm (see section 3.1, spectral characteristics).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select at least one of the NIR wavelengths used in the method of Martin to be from the group consisting of 960 nm, 980 nm, 1050 nm, 1110 nm, 1150 nm, 1210 nm, 1250 nm, 1340 nm, 1390 nm, 1450 nm, and 1680 nm as per Mishra, the motivation being that, as discovered by Mishra, at certain wavelengths, reflectance of control kernels was lower as compared to contaminated kernels due to an increase in the level of aflatoxin (see section 3.1, spectral characteristics), making the selection of any of the above wavelengths ideal for identifying aflatoxin in edible seeds. Additionally, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over Mishra et al (“Application of SWIR hyperspectral imaging coupled with chemometrics for rapid and non-destructive prediction of Aflatoxin B1 in single kernel almonds”).
As for claim 50, while Mishra fails to disclose that the wavelengths indicative of an aflatoxin presence are selected using one or more filter wheels, Mishra contemplates using filter wheels for future endeavors (see section 4, page 9). Additionally, Official notice is taken as to the well known use of filter wheels in optical measuring to be able to select a variety of different wavelengths for illumination or, in this case, detection as needed while eliminating unwanted wavelengths. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a filter wheel to Mishra to select wavelengths indicative of an aflatoxin presence, the motivation being to allow for easy selection of wavelengths known to provide strong reflectance of aflatoxin in almonds while eliminating unwanted wavelengths or extraneous reflections as is known to those in the art. Additionally, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Allowable Subject Matter
Claims 51, 52, and 60 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, 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:
As to claims 51 and 60, the prior art of record, taken either alone or in combination, fails to disclose or render obvious, in the best understanding of the examiner, the further limitation of claims 50 and 59, respectively, wherein each filter wheel comprises a wheel that accurately rotates at a set RPM, one or more filters, a position encoder which measures the current location of the wheel and triggers the filter wheel when the desired filter is in position; and one or more NIR lights, in combination with the rest of the limitations of the above claim.
While the examiner notes that filter wheels on their own are well known, as are position encoders to measure rotation of rotating devices such as filter wheels, the prior art fails to disclose or render obvious, in particular, the instant method and system including a filter wheel that includes accurate rotation of the filter wheel at a set RPM, the position encoder triggering the filter wheel when the desired filter is in position, and the inclusion of one or more NIR lights with the filter wheel itself.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. “Short wave infrared (SWIR) hyperspectral imaging technique for examination of aflatoxin B1 (AFB1) on corn kernels” to Kandpal et al. and “Detection of aflatoxin B1 (AFB1) in individual maize kernels using short wave infrared (SWIR) hyperspectral imaging” by Chu et al. both teach performing hyperspectral imaging on corn kernels to detect aflatoxins. Additionally, while not eligible as prior art, WO 2023/272338 to Martin et al. discloses a classification method and system for an edible seed that discloses the filter wheel of the instant application (see claim 15 on page 21).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael A. Lyons whose telephone number is (571)272-2420. The examiner can normally be reached Monday - Friday.
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, Michelle Iacoletti can be reached at 571-270-5789. 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.
/Michael A Lyons/Primary Examiner, Art Unit 2877 August 21, 2026
Prosecution Insights