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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 29, 2026 has been entered.
Notes
All the objections and rejections in the previous Office Action not reiterated herein have been withdrawn.
Terminal Disclaimer
The terminal disclaimer filed on May 29, 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 10,988,720 and 10,407,654 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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, 4-5, 7-8 and 11-20 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.
Claim 1 recites the limitation "a water sample" in lines 2 and 27. However, it is unclear if the water sample recited in line 27 is referring to or related to the water sample recited in line 2, or is an additional water sample. Further, the claim recites the limitation “a water sample” in line 27, and further recites the limitation “said water sample being adapted to be dispensed into said recessed well” in lines 27-28. It is unclear whether the water sample is material worked upon by the device or an element of the claimed device. For examination purposes, the water sample is treated as a material worked upon since the water sample is dispensed into the recessed well of the device. Claims 4-5, 7-8 and 11-20 are rejected as being dependent upon a rejected base claim.
Appropriate correction is required.
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)(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.
Claims 1, 4-5, 7-8 and 11-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Skiffington et al. (already of record, US 10,988,720; hereinafter “Skiffington”).
The applied reference has a common inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 1, Skiffington discloses an assembly for enumerating a microorganism, when present, in a water sample, said assembly comprising: a. a peel plate comprising: i. a recessed well having a sunken wall protruding from an upper face (FIGS. 1-2 and 4; col. 4, line 57 to col. 5, line 39) and having a dried media culture disc adapted to rehydrate upon contact with said water sample to promote growth of said live heterotrophic bacteria, when present (dried media is contacted with a water sample; col. 3, ll. 44-46; col. 4, line 57 to col. 5, line 39; col. 7, ll. 21-26); ii. a pair of opposing proximate extensions integrally formed with said peel plate adjacent said recessed well and spaced between an access indent, wherein at least one of said proximate extensions includes a raised proximate tab adapted to align multiple plates in a layered position (FIGS. 1-2: col. 4, line 57 to col. 5, line 30); iii. a distal raised platform adjacent said recessed well, and wherein said recessed well being spaced between said distal raised platform and said proximate extensions (FIGS. 1-2 and 4: col. 3, ll. 62-66, col. 4, line 57 to col. 5, line 30); and iv. a resealable, removeable cover seal comprising a flexible sheet having a first end fixedly secured to said plate adjacent said distal raised platform (FIGS. 7-8, col. 5, ll. 52-60, col. 6, ll. 13-19), and wherein said first end of said cover seal remains fixed to said peel plate during opening of an opposing second removable end (see FIG. 5; col. 5, ll. 40-44), and said opposing second removable end adapted to peelably enclose said recessed well, and wherein said cover seal includes an integral peel tab removably secured to a proximate end of said plate (FIGS. 7-8, col. 5, ll. 52-60, col. 6, ll. 13-19), and wherein said peel plate adapted to enable visual enumeration of enumerate said live heterotrophic bacteria by facilitating growth within said recessed well under controlled conditions, when present in said water sample (col. 4, ll. 19-20 and 63-65; col. 7, ll. 21-26); and b. a water sample comprising live heterotrophic bacteria, when present, said water sample being adapted to be dispensed into said recessed well such that said dried media culture disc rehydrates and diffuses said water sample about said recessed well for visual enumeration of colonies of said live heterotrophic bacteria, when present (water sample is dispensed into said recessed well having dried media culture disc adapted to diffuse liquid sample throughout the dried media culture (matrix); see col. 2, ll. 48-52; col. 5, ll. 38-39 and 45-51; col. 6, ll. 57-67; further, dried media culture disc of Skiffington is structurally the same as the instant dried media culture disc and thus meets the limitation “dried media culture disc rehydrates and diffuses said water sample about said recessed well for visual enumeration of colonies of said live heterotrophic bacteria, when present”).
Furthermore, it is noted that the recitations of functional language "for enumerating live heterotrophic bacteria, when present, in a water sample; and, to enable visual enumeration of enumerate said live heterotrophic bacteria by facilitating growth within said recessed well under controlled conditions, when present in said water sample" are drawn to intended use of the claimed invention.
Regarding claim 4, Skiffington further discloses wherein said recessed well being aligned below and parallel to an upper face of said plate and includes a grid (col. 3, ll. 7-10).
Regarding claim 5, Skiffington further discloses wherein said grid being visible for colony counting after said sample has absorbed and diffused (col. 3, ll. 10-13).
Regarding claim 7, Skiffington further discloses wherein said proximate extensions each include a rounded corner entry to said access indent (col. 3, ll. 14-16).
Regarding claim 8, Skiffington further discloses wherein said distal raised platform spans about a length of a diameter of said recessed well (col. 3, ll. 18-19).
Regarding claim 11, Skiffington further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient (col. 3, ll. 25-26).
Regarding claim 12, Skiffington further discloses wherein said dried media culture disc comprises a growth indicator color-developing agent (col. 3, ll. 27-28).
Regarding claim 13, Skiffington further discloses wherein said color-developing agent is selected from the group consisting of triphenyltetrazolium chloride, 3-(p-iodophenyl)-2-(p- nitrophenyl)-5-phenyl-2H-tetrazolium chloride, 3-(4,5-dimethyl-2-thiazolyl)-2 ,5-diphenyl-2H- tetrazolium bromide, 5-bromo-3-indolyl-beta.-D-galactoside, bromothymol blue, and neutral red (col. 3, ll. 28-33).
Regarding claim 14, Skiffington further discloses wherein said dried media culture disc comprises a plate count agar or plate count agar individual components (col. 3, ll. 33-34).
Regarding claim 15, Skiffington further discloses wherein said dried media culture disc comprises a yeast and mold growth media (col. 3, ll. 35-36).
Regarding claim 16, Skiffington further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient selective medium for growth of indicator organisms (col. 3, ll. 37-39).
Regarding claim 17, Skiffington further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for coliform, E. coli, enterbacteriaceae, or pathogens (col. 3, ll. 39-41).
Regarding claim 18, Skiffington further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for salmonella, listeria, or camphlobacter (col. 3, ll. 41-43).
Regarding claim 19, Skiffington further discloses wherein said dried media culture disc comprises at least one of an organic solvent (col. 3, ll. 44-45) and enhancer (col. 3, ll. 46-48).
Regarding claim 20, Skiffington discloses all of the structural features of the claimed peel plate and thus considered to meet the limitation “a limit of detection being one colony forming unit per millimeter of said water sample.” Furthermore, the bacterial and water sample are material worked on and not elements of the claimed peel plate. It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.
Claims 1, 4-5, 7-8 and 11-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Skiffington et al. (already of record, US 10,407,654; hereinafter “‘654”).
The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 1, ‘654 discloses an assembly for enumerating a microorganism, when present, in a sample, said assembly comprising: a. a peel plate comprising: i. a recessed well having a sunken wall protruding from an upper face (FIGS. 1-2 and 4; col. 6, ll. 17-65) and having a dried media culture disc adapted to rehydrate upon contact with said water sample to promote growth of said live heterotrophic bacteria, when present (dried media culture disc of ‘654 is structurally the same as the instant dried media culture disc and thus fully capable “to rehydrate upon contact with said water sample to promote growth of said live heterotrophic bacteria, when present”; see also col. 3, ll. 3-6); ii. a pair of opposing proximate extensions integrally formed with said peel plate adjacent said recessed well and spaced between an access indent, wherein at least one of said proximate extensions includes a raised proximate tab adapted to align multiple plates in a layered position (FIGS. 1-2 and 4; col. 6, ll. 17-65); iii. a distal raised platform adjacent said recessed well, and wherein said recessed well being spaced between said distal raised platform and said proximate extensions (FIGS. 1-2 and 4; col. 4, ll. 15-17, col. 6, ll. 56-61); and iv. a resealable, removeable cover seal comprising a flexible sheet having a first end fixedly secured to said plate adjacent said distal raised platform, wherein said first end of said cover seal remains fixed to said peel plate during opening of an opposing second removable end (as shown in FIG. 4, at least a portion of the removable cover seal is attached to the peel plate when a portion of the removeable cover seal is lifted), wherein said opposing second removable end adapted to peelably enclose said recessed well, and wherein said cover seal includes an integral peel tab removably secured to a proximate end of said plate (FIGS. 1-2 and 4, col. 4, ll. 31-37, col. 8, ll. 18-19), and wherein said peel plate adapted to enable visual enumeration of enumerate said live heterotrophic bacteria by facilitating growth within said recessed well under controlled conditions, when present in said water sample (col. 4, ll. 35-39); and b. a water sample comprising live heterotrophic bacteria, when present, said water sample being adapted to be dispensed into said recessed well such that said dried media culture disc rehydrates and diffuses said water sample about said recessed well for visual enumeration of colonies of said live heterotrophic bacteria, when present (water sample is dispensed into said recessed well having dried media culture disc adapted to diffuse liquid sample throughout the dried media culture (matrix); see col. 2, line 65 to col. 3, line 2; col. 3, ll. 29-30; further, dried media culture disc of ‘654 is structurally the same as the instant dried media culture disc and thus meets the limitation “dried media culture disc rehydrates and diffuses said water sample about said recessed well for visual enumeration of colonies of said live heterotrophic bacteria, when present”).
Furthermore, it is noted that the recitations of functional language "for enumerating live heterotrophic bacteria, when present, in a water sample; and, to enable visual enumeration of enumerate said live heterotrophic bacteria by facilitating growth within said recessed well under controlled conditions, when present in said water sample" are drawn to intended use of the claimed invention.
Regarding claim 4, ‘654 further discloses wherein said recessed well being aligned below and parallel to an upper face of said plate and includes a grid (col. 3, ll. 26-27).
Regarding claim 5, ‘654 further discloses wherein said grid being visible for colony counting after said sample has absorbed and diffused (col. 3, ll. 27-30).
Regarding claim 7, ‘654 further discloses wherein said proximate extensions each include a rounded corner entry to said access indent (col. 3, ll. 32-33).
Regarding claim 8, ‘654 further discloses wherein said distal raised platform spans about a length of a diameter of said recessed well (col. 3, ll. 36-37).
Regarding claim 11, ‘654 further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient (col. 3, ll. 43-44).
Regarding claim 12, ‘654 further discloses wherein said dried media culture disc comprises a growth indicator color-developing agent (col. 3, ll. 45-46).
Regarding claim 13, ‘654 further discloses wherein said color-developing agent is selected from the group consisting of triphenyltetrazolium chloride, 3-(p-iodophenyl)-2-(p- nitrophenyl)-5-phenyl-2H-tetrazolium chloride, 3-(4,5-dimethyl-2-thiazolyl)-2 ,5-diphenyl-2H- tetrazolium bromide, 5-bromo-3-indolyl-beta.-D-galactoside, bromothymol blue, and neutral red (col. 3, ll. 46-51).
Regarding claim 14, ‘654 further discloses wherein said dried media culture disc comprises a plate count agar or plate count agar individual components (col. 3, ll. 51-53).
Regarding claim 15, ‘654 further discloses wherein said dried media culture disc comprises a yeast and mold growth media (col. 3, ll. 53-54).
Regarding claim 16, ‘654 further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient selective medium for growth of indicator organisms (col. 3, ll. 55-57).
Regarding claim 17, ‘654 further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for coliform, E. coli, enterbacteriaceae, or pathogens (col. 3, ll. 57-58).
Regarding claim 18, ‘654 further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for salmonella, listeria, or camphlobacter (col. 3, ll. 59-61).
Regarding claim 19, ‘654 further discloses wherein said dried media culture disc comprises at least one of an organic solvent (col. 3, ll. 62-63) and an enhancer (col. 3, ll. 65-66).
Regarding claim 20, ‘654 discloses all of the structural features of the claimed peel plate and thus considered to meet the limitation “a limit of detection being one colony forming unit per millimeter of said water sample.” Furthermore, the bacterial and water sample are material worked on and not elements of the claimed peel plate. It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.
Response to Arguments
Applicant’s claim amendment does not overcome the prior art of record. Further, Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. Further, Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 5712721374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799
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