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 .
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 “a plurality of slit members provided between the sample stage and the detector, each comprising a slit through which the diffracted X-ray can pass, wherein longitudinal directions of the slits are different from each other” must be shown or the feature(s) canceled from the claim(s) (figs. 34 and 35 show a plurality of slit members with parallel longitudinal axis). 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 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 1-20 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 independent claims 1, 2, and 20, the claim limitation “a detector configured to detect a diffracted X-ray, which is the X-ray that has been diffracted, in two dimensions at a pixel” or similar language is indefinite insofar as the examiner is unclear about the structure of “in two dimensions at a pixel” and it is impossible to determine the intending scope of the structure of “in two dimensions at a pixel” in claim 1. Individual pixels are 0-dimensional measurement areas, it is by arranging a plurality of pixels that either a 1-dimensional or 2-dimensional detector is made. However, the plain text reading implies that there is some additional structure to each pixel which allows for a 2-dimensional measurement at the individual pixel level. It is impossible to determine if the intended scope is a standard 2-dimensional detector array or some other new type of pixel. Therefore, it is indefinite.
For the purposes of examination, it is interpreted to be a detector comprising a two dimensional array of pixels which is configured to detect a diffracted X-ray, which is the X-ray that has been diffracted.
Also, dependent Claims 3-19 are rejected by virtue of its dependency.
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, 6, 12, 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 Kobayashi et al. US 2017/0363550.
Regarding claim 1, Kobayashi discloses an X-ray diffraction apparatus (figs. 1, 5a, 6, 8, 9a-9c), comprising: an X-ray source (F) configured to irradiate a sample (S) with an X-ray (para. 0093); a sample stage (3) configured to allow the sample to be disposed in such a manner that the X-ray is diffracted (para. 0064; diffractometer); a detector (5) configured to detect a diffracted X-ray, which is the X-ray that has been diffracted, in two dimensions at a pixel (para. 0093; see Claim Rejections - 35 USC § 112); and a pinhole member (4) provided between the sample stage (3) and the detector (5), comprising a pinhole (15) through which the diffracted X-ray can pass (para. 0117).
Regarding claim 6, Kobayashi discloses wherein: a center of a goniometer circle (G0), the pinhole (15) and the pixel are provided to be aligned (para. 0117, 0144; the detector is movable so that a pixel can be aligned with the pinhole).
Regarding claim 12, Kobayashi discloses wherein: the detector is configured to detect the diffracted X-ray with a first pixel when a diffraction angle of the diffracted X-ray is equal to a goniometer angle (para. 0117, 0144; the detector is movable so that a pixel can be aligned with the pinhole), and to detect the diffracted X-ray with a second pixel when the diffraction angle is not equal to the goniometer angle (fig. 1).
Regarding claim 18, Kobayashi discloses wherein: the sample stage comprises an installation surface on which the sample is disposed (para. 0099), and is configured to rotate about an axis so as to change an orientation of the installation surface (para. 0109-0112).
Regarding claim 19, Kobayashi discloses wherein: the X-ray irradiated from the X-ray source to the sample is a parallel X-ray (para. 0096).
Regarding claim 20, Kobayashi discloses measurement method of a sample, comprising: irradiating the sample (S) with an X-ray (R1), and allowing the X-ray to diffract (para. 0064; diffractometer); allowing a diffracted X-ray, which is the X-ray that has been diffracted (diffractometer), to pass through a pinhole (15); and measuring the sample by detecting (5) the diffracted X-ray in two dimensions at a pixel (para. 0093; see Claim Rejections - 35 USC § 112).
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 2, 4-5, 7, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 2017/0363550.
Regarding claim 2, Kobayashi teaches an X-ray diffraction apparatus (figs. 1, 5a, 6, 8, 9a-9c), comprising: an X-ray source (F) configured to irradiate a sample (S) with an X-ray (para. 0093); a sample stage (3) configured to allow the sample to be disposed in such a manner that the X-ray is diffracted (para. 0064; diffractometer); a detector (5) configured to detect a diffracted X-ray, which is the X-ray that has been diffracted, in two dimensions at a pixel (para. 0093; see Claim Rejections - 35 USC § 112) except that a pinhole member (4) provided between the sample stage (3) and the detector (5), comprising a slit (25) through which the diffracted X-ray can pass (fig. 6)
Kobayashi does not explicitly disclose having a plurality of slits; however, it has been judiciarily determined that duplication of parts has been obvious to one of ordinary skill in the art (MPEP 2144.04.IV.B). Duplication 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 duplication of parts is not of patentable significance.
Additionally, Kobayashi does not explicitly disclose wherein longitudinal directions of the slits are different from each other, 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 4, Kobayashi teaches wherein: each of the slits comprises a tapered shape that spreads from the sample stage toward the detector (fig. 6; para. 0133).
Regarding claim 5, Kobayashi teaches wherein: each of the slits has a width in a transverse direction that is wider than a width of the pixel (fig. 6; para. 0107, 0135; W0 is the width of the detector which is made of many pixels, the largest width between 24a to 24b is clearly wider than that of a pixel).
Regarding claim 7, Kobayashi discloses wherein: a center of a goniometer circle (G0), a center in a transverse direction of each of the slits (15) and the pixel are provided to be aligned (para. 0134, 0144; the detector is movable so that a pixel can be aligned with the pinhole).
Regarding claim 13, Kobayashi discloses wherein: the detector is configured to detect the diffracted X-ray with a first pixel when a diffraction angle of the diffracted X-ray is equal to a goniometer angle (para. 0134, 0144; the detector is movable so that a pixel can be aligned with the pinhole), and to detect the diffracted X-ray with a second pixel when the diffraction angle is not equal to the goniometer angle (fig. 1).
Regarding claim 15, Kobayashi teaches an interference prevention member (24a-b para. 0133; a shield member is a interference prevention member), wherein: the interference prevention member is configured to prevent interference (para. 0133), between the pinhole member and the detector (fig. 6 shield is between detector and pinhole).
Kobayashi does not explicitly disclose the slit member comprises a first slit and a slit pinhole; however, it has been judiciarily determined that duplication of parts has been obvious to one of ordinary skill in the art (MPEP 2144.04.IV.B). Duplication 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 duplication of parts is not of patentable significance.
Additionally, the most natural way to duplicate the slit of Kobayashi would be to duplicate adjacent shield membesr which would then have the interference prevention member being configured to between a first diffracted X-ray passing through the first slit and a second diffracted X-ray passing through the second slit.
Claims 3 and 14 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 2017/0363550.
Regarding claim 3, Kobayashi does not explicitly disclose wherein: the pinhole comprises a tapered shape that spreads from the sample stage toward the detector, however, it has been judiciarily determined that changing in shapes has been obvious to one of ordinary skill in the art (MPEP 2144.04.IV.B). A change in shape 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 change of shape is not of patentable significance
Regarding claim 14, Kobayashi teaches an interference prevention member (4 para. 0093; a shield member is a interference prevention member), wherein: the interference prevention member is configured to prevent interference (para. 0093), between the pinhole member and the detector (fig. 1 shield is between detector and pinhole).
Kobayashi does not explicitly disclose the pinhole member comprises a first pinhole and a second pinhole; however, it has been judiciarily determined that duplication of parts has been obvious to one of ordinary skill in the art (MPEP 2144.04.IV.B). Duplication 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 duplication of parts is not of patentable significance.
Additionally, the most natural way to duplicate the pinhole of Kobayashi would be to make another pinhole in the pinhole member/ shield member which would then have the interference prevention member being configured to between a first diffracted X-ray passing through the first pinhole and a second diffracted X-ray passing through the second pinhole.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 2017/0363550 in view of Liu et al CN. 209841249.
Regarding claim 16, Kobayashi fails to teach a monochromator comprising a lattice plane diffracting the diffracted X-ray of a specific wavelength, provided between the pinhole member and the detector.
Liu teaches a monochromator (fig. 1 #10) comprising a lattice plane diffracting the diffracted X-ray of a specific wavelength (pg. 3 para. 9), provided between the beam conditioner (7, 9) and the detector (12) for the purpose of eliminating K
β
and background radiation (pg. 4 para. 1).
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 monochromator comprising a lattice plane diffracting the diffracted X-ray of a specific wavelength, provided between the pinhole member and the detector as taught by Liu in the X-ray diffraction apparatus of Kobayashi for the purpose of eliminating K
β
and background radiation.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 2017/0363550 in view of Zheng et al. US 2008/0095311.
Regarding claim 17, Kobayashi teaches the sample stage comprises an installation surface on which the sample is disposed (para. 0099).
Kobayashi fails to teach wherein: the sample stage is configured to move parallel to the installation surface.
Zheng teaches wherein: the sample stage is configured to move parallel to the installation surface (para. 0019) for the purpose of improved alignment (para. 0019).
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 sample stage is configured to move parallel to the installation surface as taught by Zheng in the X-ray diffraction apparatus of Kobayashi for the purpose of improved alignment.
Allowable Subject Matter
Claims 8-11 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including 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:
Regarding claims 8 and 9, Xiao CN 116593509 teaches wherein: a diffraction angle of the diffracted X-ray depends on a distance from the pinhole/slit to the detector (pg. 8 para. 4) but fails to qualify as prior art under 35 U.S.C. 102(a)(1) or 35 U.S.C. 102(a)(2).
Kobayashi et al. US 2017/0363550; Liu et al CN. 209841249; and Zheng et al. US 2008/0095311, either singularly or in combination, does not disclose or suggest "wherein: a diffraction angle of the diffracted X-ray depends on a distance from the pinhole [or slit] to the detector," along with other claim limitations.
Additionally, the claims are directed to a non-obvious improvement over inherency of Fresnel diffraction. The Fresnel approximation requires that the distance from the pinhole to the detector and the distance the wave travels to be approximately equal (small angle approximation). As seen in Kobayashi fig. 1, a small angle approximation would be improper due to the width of R2. Further, Kobayashi is explicit in that the size of the pinhole is the determining factor of the angle of R2 (para. 0102).
Regarding claims 10 and 11, the prior art of record does not disclose or suggest wherein: a distance between the pinhole or slit and the detector depends on a diffraction angle of the diffracted X-ray, an angle of a goniometer and a distance from one pixel to another pixel, along with other claim limitations.
Kobayashi et al. US 2017/0363550; Liu et al CN. 209841249; and Zheng et al. US 2008/0095311, either singularly or in combination, does not disclose or suggest " wherein: a distance between the pinhole [or slit closest to the sample stage] and the detector depends on a diffraction angle of the diffracted X-ray, an angle of a goniometer and a distance from one pixel to another pixel," along with other claim limitations.
Additionally, a 103 rejection of claims 8-11 due to inherency of Fresnel diffraction would be improper. The Fresnel approximation requires that the distance from the pinhole to the detector and the distance the wave travels to be approximately equal (small angle approximation). As seen in Kobayashi fig. 1, a small angle approximation would be improper due to the width of R2. Further, Kobayashi is explicit in that the size of the pinhole is the determining factor of the angle of R2 (para. 0102).
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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