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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/12/2025 has been entered.
Response to Arguments
Applicant's arguments filed 06/12/2025 have been fully considered but they are not persuasive.
Applicant’s first argument is quoted below:
Kelly is directed to "self-contained devices and methods for detecting biological contaminants in relevant settings including food processing plants, hospitals, medical offices, veterinary offices, and restaurants by using a device or methodology that includes a sampler component and dye component that binds to the biological material in a detectable fashion". Kelly et al., paragraph [0002].. Kelly's device is fundamentally different from the claimed invention, which is "specifically for firefighter gear decontamination assessment". As-Filed Specification, page 12, Lines 10-19.. Kelly's focus on biological contaminants in general settings using dye components is not applicable to the specific use case of assessing firefighter gear after decontamination procedures.
In response to the argument above, examiner believes that Kelly’s device with the claimed structures does reasonably meet the device of the instant application as claimed (see rejection below). Note that a recitation of the intended use (i.e., use of the claimed device for firefighter gear”) of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, Kelly’s device is capable of performing sample collection on a variety of surfaces including that of the claimed firefighter gear.
In addition, examiner has used a secondary reference to indicate that it is known to conduct a decontamination procedure and inspection on firefighter gear (see rejection below).
Applicant’s second argument is quoted below:
Liang's swab device, while sterile, is designed for biological sample collection with a focus on preventing sample leakage. This is distinct from the claimed invention, which "is not designed to clean the surface by removing all particulate contaminant but instead is to take a sample of any contaminant on the substrate for trace analysis". As-Filed Specification, page 11, Lines 12-16..
In response to the argument above, examiner relied on the reference of Liang in order to show that the collector assembly has a sterile collection surface having a screen made without reagents and the collector assembly that is hermetically sealed in a sterile container while the remaining limitations are thought with the primary reference in view of Matros as rejected below. In addition, note that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In addition, the remaining arguments have been considered but are moot because the new ground of rejection does not rely on all reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 – 9 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 to Claim 1, the instant claim recites the limitation “rubbed onto a substrate” in line 20 page 1 of the claims and further states “…determine whether the substrate has been decontaminated during the decontamination procedure, ensuring that the decontamination was complete and there is no risk posed to the firefighter when using the gear again” in lines 3 – 6 at page 2 of claim 1. It is vague/unclear as to what the nexus is between the “substrate” that is being rubbed and “gear” in the aforementioned limitation. Is the “substrate” part of the “firefighter gear”? or is it referring to a different substrate?
As to Claim 2, the instant claim recites “sufficiently” in line 15 at page 3. The term “sufficiently” in the instant claim is a relative term which renders the claim indefinite. The term “sufficiently” 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.
As to Claim 2, the instant claim recites the limitation “the collector assembly is not designed to clean the collection surface” (emphasis added) at lines 17 – 18 at page 3 of the claims. Could the “collection surface” be referring to the “substrate”? Note that the “collection surface” is part of the “collector assembly” which is being used to collect sample from the substrate. How can the “collector assembly” be designed or not designed in this case to clean the “collection surface” (i.e., of the collector assembly itself)? Examiner is interpreting the aforementioned limitation to be read as “the collector assembly is not designed to clean the substrate” instead of “the collector assembly is not designed to clean the collection surface” (i.e., lines 17 – 18 at page 3 of the claims).
As to Claim 2, the instant claim recites the limitation “of the substrate”, in line 20 at page 3 of the claims. Is applicant’s intent to recite “from the substrate” instead of “of the substrate”?
As to Claim 9, the instant claim recites the phrase “the decontamination assessment procedure” in line 3 at page 5 of the claims. There is insufficient antecedent basis for this limitation resulting in unclear scope of the claim. In addition, note that the independent claim 2 requires the process claim to be conducted “after a decontamination procedure has already been completed” (lines 8 – 9 as well as 12 – 13 at page 2 of the claims). It is therefore unclear as to what is meant by “conducting the decontamination assessment procedure prior to any cleaning or remediation efforts” (emphasis added) (lines 3 – 4 at page 5 of instant claim 9).
Due to claim dependency, all dependent claims are also rejected (claims 3 – 8).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2002/0057991 A1 to Kelly et al. (hereinafter “Kelly”) in view of U.S. Patent Application Publication No. 2021/0002814 A1 to Matros (hereinafter “Matros”) in view of CN 106388870 A to Liang, Ya-xin (hereinafter “Liang”).
Regarding Claim 1, Kelly teaches a decontamination assessment device which proves the absence of specific substances after a decontamination procedure has already been completed in order to improve safety of first responders (see paragraphs [0002] – [0004], [0032] and [0094] describing the invention related to self-contained devices and methods for detecting biological contaminants in a variety of places including hospitals, medical offices, veterinary offices, ambulances etc. and in particular to paragraph [0105] stating “a method of sanitation testing is provided in which a device as described above is used to detect the presence of contaminants on or from a surface or in solutions, such as following cleaning procedures on a surface. In particular embodiments, the method involves contaminant testing of surfaces or solutions in food processing facilities such as a food production plants, restaurant, hospitals, laboratories, physicians' offices, ambulances, or veterinary hospitals”, thus reading on the invention as claimed): the decontamination assessment device comprising a handle assembly and a collector assembly (see the devices illustrated in Figs. 1 – 12 which comprise a sample stick or wand or tube connected/assembled with a sample collection pad/surface, in particular see Figs. 9 - 12 illustrating a device with a sampler stick (i.e., handle assembly) inserted in a plastic housing and a sample collection surface (i.e., collector assembly), see paragraphs [0118] – [0121]).
Even though Kelly teaches devices and methods for detecting biological contaminants in relevant settings including hospitals, laboratories, physicians’ offices, ambulances or veterinary offices (i.e., all of which involve first responders and their safety) as described above, Kelly may be construed as not explicitly stating the device used for “specifically for firefighter gear decontamination assessment”. However, the aforementioned limitation is the intended use (i.e., use of the decontamination assessment device for a particular gear) and a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Therefore, Kelly’s device is capable of being used for collecting samples from a variety of surfaces including that of first responder (i.e., firefighter’s) gear as claimed.
In addition, Matros, in the field of mobile firefighter gear cleaner (see abstract), teaches that it is known to clean/decontaminate and inspect gear of first responders such as firefighters regularly (see paragraphs [0004], [0014], [0020] – [0029] describing the necessity and process of cleaning and inspecting firefighter gear).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate firefighter gear of Matros into the detection device of Kelly, in order to carry out a thorough detection of biological contaminants of the particular firefighter gear.
Kelly in view of Matros as modified above teaches;
the collector assembly (sample collection surfaces at Figs. 9 – 12 of Kelly) is affixed to an end of the handle assembly wherein the handle assembly and the collector assembly do not separate but are unified into one assembly (see arrangement at Figs. 9 - 12 of Kelly illustrating unified assembly of the sampler stick and the sample collection surface, note that the handle assembly and the collector assembly do not separate but are unified during use, hence reading on the invention as claimed);
the handle assembly allowing a user to grasp the collector assembly without touching the collector assembly (see any of Figs. 1 – 12 and paragraphs [0118] – [0121] of Kelly illustrating a sample stick or wand or tube connected with a sample collection pad/surface, thus the handle assembly (i.e., stick or wand or tube) allows a user to grasp the sample collection pad/surface without touching the collection pad/surface, hence reading on the invention as claimed);
the collector assembly has a collection surface that when rubbed onto a substrate collects a surface contaminant from the substrate (see paragraphs [0104], [0105], [0121], [0130] of Kelly describing the device and method for detecting the presence of a substance by swabbing a surface by the sampler device to collect contaminant from the surface and which can be analyzed further using a reading instrument, note that the sampler stick comprising the components are “stored in a plastic container or sealable pouch” as described at paragraph [0130], see also Fig. 12 of Kelly illustrating the device comprising the sampler tube and the collection surface inserted within an airtight pouch 116, hence providing a clean collection surface).
the collector assembly is hermetically sealed in a container (see sealed pouch 116, Fig. 12, see paragraph [0121] of Kelly) and delivered to a testing facility to determine whether the substrate has been decontaminated during the decontamination procedure, ensuring that the decontamination was complete and there is no risk posed to the firefighter when using the gear again (see paragraphs [0097], [0104] of Kelly describing instruments such as spectrophotometer, fluorimeter or colorimeter being used to read results from the collection device, see also paragraphs [0004], [0014], [0020]- [0029] of Matros, see modification of Kelly in view of Matros above).
Even though Kelly teaches the collector assembly is hermetically sealed in a container as indicated above, Kelly in view of Matros does not explicitly state that the collector assembly has a sterile collection surface, the sterile collection surface is a screen made from an alloy without reagents and that the collector assembly is hermetically sealed in a sterile container (emphasis added).
Liang, in the field of swab assembly for collecting biological samples, teaches that it is known to use a collector assembly having a sterile collection surface, the sterile collection surface is a screen made without reagents (see abstract at page 1 and page 4 last seven lines from bottom of page describing the swab assembly 11 comprising sub swab head 1113 which is sterile cotton material, thus the cotton material (i.e., screen as claimed) is made without reagents). Liang further teaches that the collector assembly (swab assembly 11 comprising the sub swab sterile cotton head 1113, Fig. 1, see page 4 last 7 lines from bottom of page) is hermetically sealed in a sterile container (see abstract describing the invention is designed to prevent pollution, sample leakage etc. after the collection is finished by locking the swab assembly as described in the invention, see also page 3, lines 6 – 18, page 5, lines 1 – 22, hence reading on the invention as claimed).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the sterile collection surface without reagents of Liang into Kelly in view of Matros, in order to be able to collect certain desired types of biological contaminants in a clean manner and which further prevents further sample leakage and pollution. The modification allows more accurate system by reducing or avoiding contamination of the collector assembly.
Insofar as Kelly in view of Matros in view of Liang may be construed as not explicitly teaching the screen (i.e., “porous matrix” and/or absorbent pad of Kelly as described at paragraphs [0037] and [0039] respectively and/or sterile cotton material of Liang as described above) made of an alloy, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a material made from an alloy, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). The modification allows an enhanced collection of particles for the type of operation the user aims to use.
Claim(s) 2 – 4, 6, 8 - 9 are rejected under 35 U.S.C. 103 as being unpatentable over Kelly in view of Matros in view of U.S. Patent Application Publication No. 2012/0220042 A1 to Sangha (hereinafter “Sangha”).
Regarding Claim 2, Kelly teaches a process for decontamination assessment which proves the absence of specific substances after a decontamination procedure has already been completed in order to improve safety of first responders (see paragraphs [0002] – [0004], [0032] and [0094] describing the invention related to self-contained devices and methods for detecting biological contaminants in a variety of places including hospitals, medical offices, veterinary offices, ambulances etc. and in particular to paragraph [0105] stating “a method of sanitation testing is provided in which a device as described above is used to detect the presence of contaminants on or from a surface or in solutions, such as following cleaning procedures on a surface. In particular embodiments, the method involves contaminant testing of surfaces or solutions in food processing facilities such as a food production plants, restaurant, hospitals, laboratories, physicians' offices, ambulances, or veterinary hospitals”, thus reading on the invention as claimed).
Even though Kelly teaches devices and methods for detecting biological contaminants in relevant settings including hospitals, laboratories, physicians’ offices, ambulances or veterinary offices (i.e., all of which involve first responders and their safety) as described above, Kelly may be construed as not explicitly stating “specifically for firefighter gear decontamination assessment”.
Matros, in the field of mobile firefighter gear cleaner (see abstract), teaches that it is known to clean/decontaminate and inspect (i.e., assess as claimed) gear of first responders such as firefighters regularly (see paragraphs [0004], [0014], [0020] – [0029] describing the necessity and process of cleaning and inspecting firefighter gear).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the specific firefighter gear of Matros into the detection method of Kelly, in order to carry out a thorough detection of biological contaminants of the particular gear.
Kelly in view of Matros as modified above teaches the process which proves the absence of specific substances after a decontamination procedure has already been completed comprises the steps of:
providing a substrate that has undergone a decontamination procedure (see paragraphs [0032], [0094] and [0105] of Kelly describing the invention is used for detection of contaminants after cleaning has been done in various areas such as hospitals, physicians' offices, clinical laboratories, ambulances or veterinarian, thus the surface that is being detected is to ensure that the cleaning is effective and/or see abstract, paragraphs [0003] – [0004], [0014], [0020] – [0029] of Matros describing decontaminating/cleaning steps of firefighter gear, hence reading on the invention as claimed);
providing a handle assembly with a grip on a first end and a connector on a second end (see the devices illustrated in Figs. 1 – 12 of Kelly which comprise a sample stick, wand, tube or sampler housing connected/assembled with a sample collection pad/surface, in particular see Figs. 9 - 12 of Kelly illustrating a device with a plastic housing including a sampler stick (i.e., handle assembly), see paragraphs [0118] – [0121] of Kelly);
providing a collector assembly, clean and sealed inside a first container (see sample collection surface at Fig. 12 of Kelly arranged within a sealable pouch 116, see paragraph [0130] of Kelly describing the method of using the devices to test for presence of protein and which further states A sampler stick (93), “stored in a plastic container or sealable pouch is removed…”, thus reading on the invention as claimed);
wherein the collector assembly has an integral collection surface (see “collection surface” at Figs. 9 – 12 of Kelly);
opening the first container while maintaining sterility of the collector assembly (see sample collection surface at Fig. 12 of Kelly arranged within a sealable pouch 116, see paragraph [0130] of Kelly describing the method of using the devices to test for presence of protein and which further states A sampler stick (93), “stored in a plastic container or sealable pouch is removed…”, thus reading on the invention as claimed);
the connector is connected to the collector assembly (see arrangement at Figs. 9 - 12 of Kelly illustrating unified assembly of the sampler stick and the sample collection surface, note that the handle assembly and the collector assembly are unified during use, hence reading on the invention as claimed);
grasping the grip and rubbing the collection surface on the substrate (see paragraphs [0104], [0105] of Kelly describing the device and method for detecting the presence of a substance by swabbing a surface by the sampler device to collect contaminant from the surface and which can be analyzed further using a reading instrument);
inserting the collector assembly into a second container (see paragraph [0121] of Kelly describing “to prevent evaporation of the wetting solution (115), the sampler tube or sampler tubes are sealed within an air-tight pouch (116)”, hence reading on the invention as claimed).
Even though Kelly teaches the collector assembly is hermetically sealed in a container as indicated above, Kelly in view of Matros does not explicitly state a sterile collector assembly and the second container being a sterile container (emphasis added).
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a sterile collector assembly and a sterile container, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). The modification allows more accurate system by reducing or avoiding contamination of the collector assembly.
In addition, Sangha, in the field of sampling devices, teaches that it is known to use swabs that are sterile and that are kept in closed sterile bags or containers (see paragraph [0007]).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use sterile swabs kept in sterile bags of Sangha into Kelly in view of Matros, in order to maintain sterility and avoid contamination of the sample.
Even though Kelly teaches the handle assembly and the collector assembly integrated together as illustrated at Figs. 1 – 12, Kelly does not explicitly teach separating the handle assembly from the collector assembly wherein the collector assembly remains inside the second container.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to separate the handle assembly from the collector assembly of Kelly, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Newin v. Erlichman, 168 USPQ 177 (BdPatApp&Int 1969). The modification allows an efficient and more accurate analysis of the sample by separating the swab that includes the sample from the handle assembly as the handle assembly is not required for further analysis of the collected sample. In addition, the modification allows for the handle assembly to be reused again with another collector thus improving cost.
In addition, Sangha, in the field of sampling devices, teaches separating the handle assembly from the collector assembly wherein the collector assembly remains inside the second container (see paragraphs [0013], [0041], [0042] and [0066] and Figs. 1 and 25 illustrating separating the handle assembly (i.e., tube 24, shaft 16) and the collector assembly (i.e., swab 14) and the swab 14 remaining inside a second container such as container 250, Fig. 25).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the separable arrangement of Sangha in to Kelly in view of Matros, in order to allow the swab to be separated from the remainder of the device and separately placed into a container for further analysis. The modification improves accuracy and efficiency of the system.
Kelly in view of Matros in view of Sanga as modified above further teaches;
hermetically sealing the second container with the collector assembly inside (see sealed pouch 116, Fig. 12, see paragraph [0121] of Kelly and/or see paragraph [0066] of Sangha);
sending the collector assembly sealed inside the second container to a testing facility (see paragraphs [0097], [0104] of Kelly describing instruments such as spectrophotometer, fluorimeter or colorimeter being used to read results from the collection device as well as reading results of the testing by reading visually and/or see paragraph [0066] of Sangha);
receiving a result from an analysis of the collection surface performed by the testing facility (see paragraph [0097] of Kelly describing the results which can be read visually); determining whether the substrate has been sufficiently decontaminated by the decontamination procedure and is therefore suitable for continued use (see paragraphs [0104] – [0105] as well as Examples 2 – 3 at paragraphs [0141] – [0163] of Kelly describing results of the tests which indicates the cleanliness levels of the samples, hence reading on the invention as claimed), and the collector assembly is not designed to clean the collection surface by removing all particulate contaminant but instead is to take a sample of any contaminate on the collection surface of the substrate for trace analysis (see paragraph [0130] of Kelly stating “An area (2 in x2 in) to be tested for protein is swabbed with a moistened collection surface (91)”, see also paragraphs [0002], [0031], [0070], [0104] – [0105] of Kelly describing taking samples from a sampling area to be tested further, hence reading on the invention as claimed).
Regarding Claim 3, Kelly in view of Matros in view of Sangha as modified above teaches the collection surface is comprised of a screen that dislodges and captures a contaminant on the substrate (see paragraphs [0037], [0070], [0080] of Kelly describing materials used or retaining target materials comprising a matrix which may be for example a network of interwoven fibers such as cotton swab, nylon or polyester mesh (i.e., screen as claimed) or felt and/or see also paragraphs [0007] - [0008] of Sangha describing swabs made of cotton, other fibers, sponge materials, thus reading on the invention as claimed), and an entire collector assembly including the screen is returned to the testing facility for analysis for the effectiveness of the subject decontamination procedure (see Fig. 12 of Kelly illustrating the entire collector assembly assembled in a sealable pouch and/or see container 250, Fig. 25 of Sangha that includes the swab for further analysis, see modification in claim 2 above).
Regarding Claim 4, Kelly in view of Matros in view of Sangha as modified above teaches the collection surface is comprised of entwined filaments that dislodge and capture a contaminant on the substrate (see paragraphs [0037], [0070], [0080] of Kelly describing materials used or retaining target materials comprising a matrix which may be for example a network of interwoven fibers such as cotton swab, nylon or polyester mesh or felt, thus reading on the invention as claimed).
Regarding Claim 6, Kelly in view of Matros in view of Sangha as modified above teaches the collection surface is comprised of a sponge that dislodges and captures a contaminant on the substrate (see paragraph [0070], [0131] of Kelly describing the absorbent swabs and collection surface materials comprising a variety of materials including a sponge and/or see paragraph [0008] of Sangha describing swabs formed of sponge material, thus reading on the invention as claimed).
Regarding Claim 8, Kelly in view of Matros in view of Sangha as modified above teaches wherein the collection surface comprises a pad fabricated of synthetic sponge, fabrics, or fibrous materials having a static charge to attract and retain particulate contamination (see paragraphs [0039], [0041] of Kelly describing the sample collection matrix which entraps target material, and further defines “entrapment” or “entrap” as “By "entrapment" or "entrap" is meant a physical association, which may be chemical, electrostatic or steric in nature, such that a target material is retained in a matrix even in the presence of forces that otherwise might have a tendency to remove such target away from the matrix.”, hence reading on the invention as claimed).
Regarding Claim 9, Kelly in view of Matros in view of Sangha as modified above teaches conducting the decontamination assessment procedure prior to any cleaning or remediation efforts to establish a baseline of contamination levels to determine exposure level that a first responder may have encountered in the line of duty (see modification of claim 2 above, see also paragraphs [0003] - [0004], [0014], [0020] – [0029] of Matros describing cleaning being conducted on a regular basis such as at least two time per year, after six months and after every exposure, hence the cleaning is done regularly to establish baseline of contamination levels as claimed).
Claim(s) 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Kelly in view of Matros in view of Sangha and further in view of U.S. Patent Application Publication No. 2016/0084740 A1 to Beaudoin et al. (hereinafter “Beaudoin”).
Regarding Claim 5, Kelly in view of Matros in view of Sangha as modified above teaches the collection surface is comprised of swab material that dislodge and capture a contaminant on the substrate (see paragraphs [0037], [0070], [0080] of Kelly describing materials used or retaining target materials comprising a matrix which may be for example a network of interwoven fibers such as cotton swab, nylon or polyester mesh or felt, and paragraphs [0007] - [0008] of Sangha describing swab material that can be formed of different materials).
Kelly in view of Matros in view of Sangha teaches the claimed invention except for the collection surface being comprised of bristles. However, it would have been obvious to one having ordinary skill in the art to use a swab material composed of bristles, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). The modification allows to efficiently and effectively capture/remove target samples from the surface being analyzed.
In addition, Beaudoin, in the field of detection swabs as described in the abstract, teaches that it is known to use the collection surface comprised of bristles (see paragraphs [0031], [0033], [0050] describing swabs that are designed for applications in existing sampling swabs and comprising brush (i.e., bristles) and fibers or brush fibers).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use collection surface comprised of bristles of Beaudoin into Kelly in view of Matros in view of Sangha in order to improve the collection efficiency of the swabs.
Regarding Claim 7, Kelly in view of Matros in view of Sangha in view of Beaudoin as modified in claim 5 above teaches wherein the collection surface comprises bristles that protrude a short distance of about 1/2mm to 5mm in length (see paragraphs [0007], [0031], [0033], [0050] and claims 12, 13 of Beaudoin describing swabs comprising brush fibers and the fibers having varying heights and diameters).
Even though Beaudoin teaches swabs comprising brushes/fibers of varying heights and diameters as described above, Beaudoin is silent regarding the protruding distance of about 1/2mm to 5mm in length. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the claimed ranges, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form accompanying this office action which includes the following references:
Doraisamy et al. (U.S. 2010/0077843 A1) teaches A substance identification apparatus configured to enable in-situ assays of substances of interest, including organic chemicals, inorganic chemicals, bioagents, etc., is provided. The assays may be performed in the field or in a laboratory setting. The sample collection includes a swab, a brush, cloth etc.
Emanuel et al. (US 10,955,314 B1) teaches one handed surface sampling device for sampling any type of substance. The sampling device uses large number of different sampling pads for example, cotton, tacky adhesive, static charged fabrics, sponge etc.
Knezevic et al. (U.S. 2005/0238535 A1) teaches methods of detecting biological material, particularly assays, methods and kits for detecting biowarfare agents such as microorganisms, biological toxins, and the like.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARRIT EYASSU whose telephone number is (571)270-1403. The examiner can normally be reached M - F: 9:00AM - 6:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura E. Martin can be reached at (571) 272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARRIT EYASSU/Primary Examiner, Art Unit 2855