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 .
Status of the Claims
Claims 1, 3-4, 7-10, 14-15, 73-74 are pending in the application and are the subject of this office action.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 15 September 2025 and 18 March 2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
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.
Claims 1, 3-4, 7-10, 14-15, and 73-74 are rejected under 35 U.S.C. 103 as being unpatentable over Swanson et al (WO 2014/070686 A1, IDS entered) in view of Verschoor et al (US 2013/0137598 A1, previously cited) and Oved et al (US 2020/0124593 A1; previously cited).
Regarding claim 1, Swanson teaches a method of detecting a first analyte of interest and a second analyte of interest present in a sample at different concentrations (Par. 92). The method comprises providing a lateral flow assay (Abstract) configured for multiplex detection of two or more analytes (Par. 48), wherein the different analytes may be detected by a competitive format reaction, a sandwich format reaction, or a combination of competitive format and sandwich format on the same test strip (Par. 73).
In an exemplary embodiment of the assay, a first analyte is detected by a competitive format assay wherein the conjugate release pad comprises a first antibody specific for the analyte and conjugated to an IR or NIR dye (i.e. a first complex), and the membrane comprises an adsorbed, immobilized first stripe of a first capture reagent, which may comprise an antigen specific for the first antibody. In this format the target analyte competes with the immobilized antigen (first capture reagent) for binding to the first antibody (Par. 7-9).
Swanson further teaches that the lateral flow assay may comprise a sandwich format for the detection of additional analytes (e.g., a second analyte of interest as in instant claim 1). Swanson teaches that in the sandwich format, the conjugate release pad comprises an adsorbed but not immobilized conjugate comprising an antibody specific for the analyte of interest wherein the antibody is conjugated directly to an IR or NIR dye (e.g., a labeled second antibody configured to specifically bind a second analyte of interest), and the membrane comprises an adsorbed, immobilized stripe of a capture reagent downstream from the conjugate release pad (i.e., downstream of the labeled second antibody), which comprises a capture antibody (i.e., a second immobilized capture agent specific to the second analyte which forms a second capture zone), specific for a second epitope of the target analyte different from the first epitope (Par. 7-10). An exemplary embodiment described in example 2 (starting on Pg. 18) describes a multiplex lateral flow assay for the detection of a first and second analyte present at different concentrations in a sample wherein the first analyte, CRP, is present at higher concentration and is detected by competitive assay, and the second analyte, IL-6, is present at lower concentration and is detected by a sandwich assay.
Swanson further teaches applying a fluid sample to the first complex and the labeled second antibody, such that the second analyte becomes bound to the labeled second antibody (Par. 48: the LFA is configured for detection of two or more analytes on a single test device; Par. 92: the LFA may employ both sandwich-based detection and competitive-based detection of different analytes on the same test strip; Par. 77: the method of using the strip comprises loading the strip with a fluid sample at the conjugate release pad, wherein the target analytes present in the sample will come into contact with the first complex, and the second analyte of interest will bind to the labeled second antibody which is disposed in the conjugate release pad, as described in Par. 7, wherein binding of the second analyte of interest to the labeled second antibody forms a second complex).
Swanson teaches flowing the fluid sample and the first complex to the first capture zone wherein the first target analyte competes with the immobilized antigen (first capture reagent) for binding to the first antibody (Par. 7-9, 36);
Flowing the second complex to the second capture zone, and binding the second complex to the second immobilized capture agent in the second capture zone (Par. 7-10, 36);
Detecting a first signal from the first complex bound to the first immobilized capture agent in the first capture zone, and a second signal from the second complex bound to the second immobilized capture agent in the second capture zone (Par. 75: target analytes bound to their respective capture zones are detected by irradiating the capture zones with IR or NIR light, and detecting a resultant emission from the capture zones as an indication of the presence of the analyte-bound conjugate);
Correlating the first signal and the second signal to a concentration of the first analyte and a concentration of the second analyte in the sample, respectively (Par. 47: analyte detection can be quantitative, providing an amount of the analyte present in the sample, wherein quantitative detection of the analyte is correlated to signals read at each capture zone, as described in Par. 75 and 115); and
Swanson differs from the instant claim in that Swanson fails to teach the specific competitive assay format comprising a first complex coupled to a flow path of the lateral flow assay, the first complex comprising a label, an antibody or a fragment thereof that specifically binds a first analyte of interest, and the first analyte.
Regarding claim 1, Verschoor teaches a lateral flow assay which may employ multiple capture zones to create a multiplex test (Par. 12). Verschoor further teaches that the lateral flow assay may comprise a competitive assay format comprising a first complex coupled to a flow path of the lateral flow assay, the first complex comprising a label, an antibody that specifically binds a first analyte of interest, and the first analyte; applying a fluid sample to the first complex; and flowing the fluid sample and the first complex to the first capture zone, where the first analyte in the fluid sample and the first complex compete to bind to the first immobilized capture agent in the first capture zone (Par. 11-12: The capture zone comprises anti-target analyte antibodies immobilized in a line on the membrane. In competitive format, the conjugate pad contains labelled antibodies that are already bound to a target analyte or to an analogue of it. If the target analyte is also present in the sample, it will therefore not bind with the conjugate and will remain unlabeled. As the sample migrates along the membrane and reaches the capture zone, an excess of unlabeled analyte will bind to the immobilized antibodies and block or outcompete the capture of the conjugate so that no visible line is produced).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the lateral flow assay taught by Swanson to use the first complex by Verschoor (i.e. a first complex coupled to a flow path of the lateral flow assay, the first complex comprising a label, an antibody that binds the first analyte of interest and the first analyte) for the first analyte, because this amounts to simple substitution of known elements to achieve predictable results. Swanson teaches that the disclosed competitive assay format is useful for detecting analytes at higher concentration, because the competitive format avoids complications caused by a potential hook effect at high concentrations of the target analyte (Par. 104). Swanson additionally teaches that it will be understood by those skilled in the art that various changes may be made and equivalents may be substituted without departing from the scope of the invention, and that other aspects, advantages, and modification will be apparent to those skilled in the art to which the invention pertains (Par. 96). The first complex taught by Verschoor is understood herein to be substitutable with the first complex taught by Swanson to achieve predictable results because both references disclose a competitive format lateral flow assay wherein the competitive format will serve to mitigate the hook effect at high concentrations of the first target analyte. The hook effect occurs in non-competitive assays when high concentrations of a target analyte result in a false negative test result due to an excess of unlabeled target analyte binding to the capture reagent in the capture zone. This effect is avoided in a competition assay such as those taught by both Swanson and Verschoor, because in the competitive format of Swanson, the target analyte competes with the immobilized antigen (first capture reagent) for binding to the first antibody, while in the competitive format taught by Verschoor, unlabeled analyte competes with labelled analyte-antibody complex to bind to the antibody in the capture zone. In both instances, a higher concentration of target analyte results in a lower detectable signal at the capture zone (due to reduced binding of labeled conjugate), and a lower detectable signal corresponds to a higher concentration of target analyte. One of ordinary skill in the art would have a reasonable expectation of success in making this modification because both Swanson and Verschoor are directed to multiplex lateral flow assays incorporating a competitive assay format which will mitigate the hook effect for a higher concentration analyte, and because Swanson explicitly teaches that the disclosed invention may include modifications and substitutions of equivalents recognized by one of ordinary skill in the art.
In the device of Swanson in view of Verschoor as described above wherein a first analyte is detected via a competitive format and a second analyte is detected via a sandwich format, one of ordinary skill in the art would understand that the lateral flow assay is configured such that the first signal decreases as the concentration of the first analyte in the sample increases within a range of concentration, and the second signal increases as the concentration of the second analyte in the sample increases, within a range of concentration. In the lateral flow assay taught by Swanson in view of Verschoor, the first analyte is detected by competitive assay format wherein a preformed complex of labeled antibody and target analyte competes with unlabeled target analyte in the sample to bind to the first capture antibody in the capture zone (Verschoor, Par. 11-12; Swanson, Par. 104). In this format, increased concentration of the first analyte of interest in the sample will lead to relatively higher binding of unlabeled analyte in the capture zone as compared to binding of labeled analyte in the capture zone, thereby resulting in decreased signal from the capture zone. In the lateral flow assay taught by Swanson in view of Verschoor, the second analyte is detected by sandwich assay format wherein the second analyte of interest binds to a second labeled antibody upstream of the second capture zone to form a second complex which is then captured by the immobilized capture agent specific to the second analyte in the second capture zone. In this format, increased concentration of the second analyte in the sample results in increased binding of labeled antibody-analyte complex in the second capture zone, thereby producing increased signal.
Regarding control zones, Swanson teaches that the lateral flow assay may comprise one control zone which may comprise a single positive control zone, wherein a signal generated at the positive control zone is independent of the presence and concentration of target analytes in the sample (Par. 7-10: the membrane comprises an adsorbed immobilized first stripe of a first capture reagent and an adsorbed, immobilized second strip of a second capture reagent different from the first capture reagent, wherein the first and second stripes collectively differentiate between analyte-bound and analyte unbound conjugate. For example, in a competitive reaction scheme format the first capture reagent may comprise an antigen specific for the first antibody, and the second capture reagent may comprise a control antibody specific for the first antibody or the analyte. In a direct or double sandwich format, the first antibody may be specific for a first epitope on the analyte; the first capture reagent comprises a capture antibody specific for a second epitope on the analyte different from the first epitope, and the second capture reagent comprises a control antibody specific for the first antibody; Par. 67: in embodiments, the second stripe functions as a control stripe and is configured to indicate that the test is properly completed i.e. that conjugate has reached the second stripe. In such embodiments, the first stripe operates as the test stripe to indicate the presence or absence of analyte in the sample. The first stripe is position between the conjugate release pad and the second stripe; Par. 70-71: the LFA device may be configured for multiplex detection of at least two analytes. In the multiplexed device, the device comprises a third stripe of a third capture reagent specific for a second analyte of the sample. The third stripe may be positioned between the first stripe (for detecting a first analyte) and the second stripe (the control stripe) such that the first stripe remains closest to the conjugate release pad and the second stripe remains furthest from the conjugate release pad. In such an arrangement, the second stripe can function as a control stripe for both first and third stripes).
That is, Swanson specifically teaches that the lateral flow device can be formatted for multiplex detection of two or more analytes and that the multiplexed device can comprise a single control line, wherein the signal generated at the positive control zone is independent of the presence and concentration of the target analytes present in the sample (i.e. the control zone is positioned downstream of all test zones such that the immobilized capture reagent at the control zone may bind to labeled antibodies which have not been immobilized at the test zones and signal will be generated at the test zone to indicate proper functioning and flow of reagents on the lateral flow device, regardless of whether any of the target analytes are or are not present in the sample).
Regarding claim 1, Swanson further teaches that the first analyte of interest may comprise CRP (i.e. such that the first complex may comprise an antibody or fragment thereof that specifically binds CRP, and the first capture zone may comprise an immobilized antibody or fragment thereof that specifically binds CRP (Par. 12; Par. 102 and 104: in an example, CRP is detected at a first capture zone via a competitive format assay; Par. 94; Par. 70-72).
Swanson differs from the instant claim in that it does not explicitly teach that the second analyte of interest is TRAIL.
Oved teaches that CRP and TRAIL may be detected as an analytes of interest on a lateral flow immunoassay for the purpose of diagnosing viral infection (Par. 14-15, 19).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Swanson in view of Verschoor such that the second analyte of interest comprises TRAIL, as taught by Oved. Swanson teaches a multiplexed lateral flow assay which can be used for the detection of biomarkers such as CRP for diagnostic applications (Swanson, Par. 70-72, 87, 94, 101-102). Oved teaches that expression levels of CRP and TRAIL can be detected on a test strip as part of a method for diagnosing viral infection (Oved, Par. 14-15, 19). One of ordinary skill in the art would be motivated to make this modification for the purpose of detecting CRP and TRAIL as clinically relevant biomarkers of infection. One of ordinary skill in the art would have a reasonable expectation of success in making this modification because both Swanson and Oved disclose test strips which can be used for the detection of biomarkers associated with infection.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a competitive format assay for the detection of CRP and a sandwich format assay for the detection of TRAIL, because CRP may be present at higher concentrations than TRAIL (Swanson, Par. 101; Oved, Par. 133-134, 185-187), and Swanson teaches that competitive format assays are advantageous for overcoming the hook effect for higher concentration analytes, and teaches that a combination of competitive format and sandwich format may be used to detect higher and lower concentration analytes on a single multiplexed test strip (Par. 3, 85, 92-95). One of ordinary skill in the art would have a reasonable expectation of success in formatting the device in this way because it follows directly from the teachings of Swanson that competitive and sandwich assays may be present on the same lateral flow device.
Regarding claims 1, and 3-4 Swanson further teaches the method wherein the amount of the first complex, and the amount of the labeled second antibody or fragment thereof, are such that the lateral flow assay is capable of generating a first signal, second signal, and third signal that correlate to the first analyte being present in the sample at a concentration at least six (or at least seven) orders of magnitude greater than the concentration of the second analyte present in the sample (Par. 12: the assay may be multiplexed for detection of two or more analytes; Par. 102 and 104: in an exemplary embodiment, the lateral flow assay may be used for multiplex detection of CRP and IL-6, wherein CRP concentrations in healthy and sick patients may range in concentration from 0.05-200 ug/ml and IL-6 concentration in human plasma is normally at a concentration of 0.1-100 pg/ml; wherein CRP is detected at a first capture zone via competitive assay and IL-6 is detected at a second capture zone via sandwich assay (Par. 104, 94)).
This range of concentrations covers at least six (or at least seven) orders of magnitude, such that the device taught by Swanson in view of Verschoor is understood to be capable of detecting and generating signal for a first analyte detected by competitive assay and a second sandwich assay, wherein the concentration of the first analyte is at least six (or at least seven) orders of magnitude greater than the concentrations of the second analyte. Detection of analytes across this broad range of concentrations is a specific focus of the invention of Swanson, and is particularly relevant to an embodiment for the detection of CRP and TRAIL, since CRP may be present at a much higher concentration than TRAIL (Swanson Par. 3, 85, 92-95, 101; Oved, Par. 133-134, 185-187).
Swanson further teaches indicating a disease condition, a non-disease condition, or no condition based on the respective concentrations of the first and second analytes (Swanson teaches that the disclosed lateral flow assay can detect presence and concentration of different biomarkers which can be used to aid diagnosis, predict future illness, evaluate disease states, and predict responsiveness to therapies in Par. 87 and 102). In the particular device of Swanson in view of Verschoor and Oved, the disease condition evaluated/indicated may be a viral infection, bacterial infection, inflammation, or no condition, based on the concentrations of CRP and TRAIL, since Swanson and Oved collectively teach that CRP may be a marker of inflammation or infection, while Oved teaches that TRAIL may be used as a marker for differentiating between bacterial and viral infection (Oved, Par. 65-66: an assay measuring TRAIL polypeptide using lateral flow immunoassays may be used for distinguishing between bacterial and viral infections. TRAIL levels are decreased in bacterial patients and increased in viral patients compared to non-infectious subjects; Par. 185-186: threshold levels of TRAIL for distinguishing between viral and bacterial infections; Swanson, Par. 101: CRP is synthesized in the liver in response to inflammation and is recommended as a biomarker of cardiovascular risk, infection, trauma, tissue necrosis, autoimmunity, and some cancers). Such that from the collected teachings one of ordinary skill in the art can conclude that a reading which comprises elevation of both TRAIL and CRP may indicate a viral or bacterial infection (which may be differentially determined based on threshold values of TRAIL identified in Oved), while a reading comprising elevated CRP without elevation of TRAIL may indicate inflammation, and a reading which does not indicate elevation of either biomarker may indicate no disease condition. One of ordinary skill in the art would be motivated to make such diagnostic conclusions for the purpose of diagnosing disease conditions and differentiating between viral and bacterial conditions, and would have a reasonable expectation of success in drawing these conclusions based on the teachings of the prior art regarding these particular biomarkers.
Regarding claim 14, Swanson further teaches the method wherein the sample is a whole blood sample, a venous blood sample, a capillary blood sample, a serum sample, or a plasma sample (Par. 11).
Regarding claim 15, Swanson further teaches the method wherein the sample is not diluted prior to applying the sample to the lateral flow assay (Par. 50: the sample may be blood or a blood component such as plasma, or may be blood or a blood component diluted with an aqueous solution (wherein specification that the sample may be blood or a blood component OR may be diluted, indicates an embodiment wherein the sample is blood or a blood component that is not diluted)).
Regarding claims 7-9, though Swanson in view of Verschoor does not explicitly teach the lateral flow assay comprising exactly three antibodies, capture zones, and analytes of interest, as in the instant claim, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the lateral flow assay taught by Swanson to specifically include three antibodies, capture zones, and analytes of interest, wherein the first analyte is detected by a competitive format and the second and third analytes are detected by sandwich format. Swanson teaches generically that the disclosed lateral flow assay is suitable for multiplex detection of two or more analytes (Par. 48), and one of ordinary skill in the art would be motivated to provide a multiplex detection assay for three target analytes in order to analyze a sample containing three different analytes of interest. Additionally, Swanson teaches that competitive format detection and sandwich format detection can be used for detection of different analytes on the same test strip and teaches that one of ordinary skill would be motivated to employ both formats on the same test strip in order to achieve accurate detection of different analytes over a high range of concentrations (Par. 92). One of ordinary skill in the art would be motivated to detect three analytes using a competitive format for the first analyte and a sandwich format for the second and third analyte because one would be motivated to use the proper assay format for the proper target analyte, and Swanson teaches for example, that competitive format is suitable for avoiding complications caused by the hook effect for higher concentration analytes (Par. 94). One of ordinary skill in the art would have a reasonable expectation of success in making these modifications because Swanson explicitly teaches a lateral flow assay that can be multiplexed and that may combine competitive and sandwich format detection for two or more analytes on the same test strip.
When modified for the detection of three analytes of interest as described above, the teachings of Swanson read on the limitations of claims 7-9 wherein the teachings of Swanson as applied to the second labeled antibody, second capture zone, and second analyte of interest in the rejection of claim 1 can be similarly applied to a third labeled antibody, third capture zone, and third analyte of interest.
Regarding claim 9, one of ordinary skill in the art will recognize that in a sandwich format assay for the detection of a third analyte, as discussed above, the lateral flow assay is configured such that the third signal increases as the concentration of the third analyte in the sample increases within a range of concentration.
Regarding claims 7-9, Swanson differs from the instant claims in that it does not explicitly teach that the third analyte of interest comprises IP-10.
Regarding claims 7-9, Oved teaches that a lateral flow immunoassay may be multiplexed for the detection of CRP, TRAIL, and IP-10 (Abstract, Par. 51).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have further modified the invention of Swanson in view of Verschoor and Oved to include detection of IP-10 as a third analyte (i.e. such that the labeled third antibody specifically binds to IP-10 and the third capture zone comprises an immobilized antibody that specifically binds IP-10), as taught by Oved. One of ordinary skill in the art would be motivated to make this modification because Oved teaches that CRP, TRAIL, and IP-10 may all be used in combination as biomarkers of infection. One of ordinary skill in the art would have a reasonable expectation of success in making this modification because both Swanson and Oved are directed to lateral flow assays which may be multiplexed for the detection of three or more analytes.
Regarding claim 10, the device of Swanson in view of Verschoor and Oved supports indication of a viral infection, bacterial infection, inflammation, or no condition based on respective concentration of CRP and TRAIL, as discussed in the rejection of claim 1 above. The additional detection and measurement of IP-10 further supports these indications, since Oved teaches that IP-10 may be used as a biomarker of infection and may be useful in distinguishing viral from bacterial infection (see, e.g. Fig 14).
Regarding claims 73-74, Swanson further teaches the method wherein the amount of the first complex, the amount of the labeled second antibody or fragment thereof, and the amount of the labeled third antibody or fragment thereof are such that the lateral flow assay is capable of generating a first signal, second signal, and third signal that correlate to the first analyte being present in the sample at a concentration at least six orders of magnitude greater than the concentration of the second analyte and the third analyte present in the sample (Par. 12: the assay may be multiplexed for detection of two or more analytes; Par. 102 and 104: in an exemplary embodiment, the lateral flow assay may be used for multiplex detection of CRP and IL-6, wherein CRP concentrations in healthy and sick patients may range in concentration from 0.05-200 ug/ml and IL-6 concentration in human plasma is normally at a concentration of 0.1-100 pg/ml; wherein CRP is detected at a first capture zone via competitive assay and IL-6 is detected at a second capture zone via sandwich assay (Par. 104, 94)).
This range of concentrations covers at least six orders of magnitude, such that the device taught by Swanson in view of Verschoor and Oved is understood to be capable of detecting and generating signal for a first analyte detected by competitive assay and a second and third analyte detected by sandwich assay, wherein the concentration of the first analyte is at least six orders of magnitude greater than the concentrations of the second analyte and the third analyte. Detection of analytes across this broad range of concentrations is a specific focus of the invention of Swanson, and is particularly relevant to an embodiment for the detection of CRP, TRAIL, and IP-10 since CRP may be present at a much higher concentrations than TRAIL and IP-10 (Swanson Par. 3, 85, 92-95, 101; Oved, Par. 133-134, 185-187, Fig. 14).
Response to Arguments
Applicant’s arguments filed 20 March 2026 have been fully considered.
Applicant’s arguments regarding the 112(b) rejections are persuasive, and the 112(b) rejections are withdrawn.
Regarding the 103 rejections, Applicant argues that Swanson is insufficient to teach a positive control zone wherein “a signal generated at the positive control zone is independent of a presence and concentration of” the target analytes. Applicant argues that because the positive control zone binds to conjugate which is not bound at the test line, signal generated at the positive control zone is not independent of the presence and concentration of the target analytes. This argument is not persuasive.
Swanson at Par. 67 teaches: “the second stripe functions as a control stripe and is configured to indicate that the test is properly complete – i.e. that conjugate has reached the second stripe” which requires that signal is generated at the positive control zone regardless of whether the target analytes are present in the sample. Thus, the positive control zone and test zone differentiate between bound analyte bound conjugate (which binds to the test zone) and analyte unbound conjugate (which can only bind to the control zone and not the test zone). This teaching requires that there is an excess of conjugate present on the test strip than could be bound at the test line, such that signal is generated at the control line to indicate proper function of the test strip independent of the presence of target analytes. As such, proper design and function of the control line taught by Swanson requires an excess of conjugate such that conjugate can saturate and produce signal at the control line regardless of the concentration of target analyte in the sample. Applicant’s argument that the control line binds to conjugate that is not bound at the test line is not sufficient to indicate that this relationship changes the signal generated at the control line based on the presence and concentration of analyte in the sample. The 103 rejection is maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/ELLIS FOLLETT LUSI/Examiner, Art Unit 1677
/CHRISTOPHER L CHIN/Primary Examiner, Art Unit 1677
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