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 .
DETAILED ACTION
Applicant’s arguments, filed 3/2/2026, have been fully considered but they are not deemed to be fully persuasive. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objects are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 15-18, 20, and 22 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 15 recites “wherein the magnetic particle consists of one or more components selected from the group consisting of (a) a magnetic element, (b) a mixture of the magnetic element and a metallic element, and (c) an oxide of (a) or (b). As (b) comprises two components, both a magnetic element and a metallic element, it’s unclear if the limitation “(c) an oxide of… (b)” requires an oxide of the magnetic element or an oxide of the metallic element.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consoder the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 15-18, 20, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US 2014/0220617 to Yung in view of Chen (ACS Appl. Mater. Interfaces, 2017) in further view of Kang (Optimization of Pathogen Capture in Flowing Fluids with Magnetic Nanoparticles, Small 2015, 11, No. 42, 5657–5666). Chen teaches methods of treating an infectious disease in an animal or human, the method comprising introducing a sample from the animal or human to hemodialysis or extracorpeal circulation device for purposes of removing pathogenic material by use of a magnetic field, such as removing infectious influenza viruses (a systemic infectious agent) from fluids comprising the active steps of mixing magnetic nanoparticles coated by red blood cell membranes with the virus and extracting the virus using a magnetic field. (abstract; Figure 1; claims). Chen teaches that the methods for pathogen targeting and isolation can be used for treatment and diagnosis of disease threats (examples; claims). Yung further teaches dialysis like extracorporeal therapeutic devices comprising a series of channels that can allow fluids and magnetic particles to flow through them that will separate out the magnetic particles when a field is applied that can collect and flush the particles acting like an artificial spleen that can remove harmful pathogens like influenza viruses (abstract; paragraph 5 and 198).
Yung fails to teach using magnetic particles comprising a cell membrane capable of capturing pathogenic material as the magnetic particles in the devices, and further fails to teach wherein the magnetic particle has an average particle size of 100 to 300 nm.
Chen teaches methods of removing infectious influenza viruses (a systemic infectious agent) from fluids comprising the active steps of mixing magnetic nanoparticles coated by red blood cell membranes with the virus and extracting the virus using a magnetic field (abstract; Figure 1). Chen teaches that the methods for pathogen targeting and isolation can be used for treatment and diagnosis of disease threats (abstract; conclusion) Chen teaches that the particles utilize cellular membrane coatings that provide for selective binding affinity to viral pathogens that form colloidally stable clusters with influenza viruses (abstract; conclusion).
Kang teaches magnetic nanoparticles with a size of 250 nm provide efficient magnetic separation in solution for purpose of capturing pathogens in flowing fluids with magnetic nanoparticles (Title, Abstract, Conclusion).
It would have been obvious one of ordinary skill in the art at the time the invention was made to use magnetic nanoparticles in the method of Chen for purposes of capturing the influenza virus particle from samples taken from animals and/or humans. The motivation for this would be to improve the capture of virus particles during treatment by using the improved magnetic particles of Chen that mimic natural cells allowing for binding to viruses and their removal. One of ordinary skill in the art would have had a predictable expectation of success in making this combination given that all of the art is directed to removing pathogens from the blood using magnetic particles removed by magnetic fields and Chen teaches an improved magnetic particle useful in just such techniques. It would have been further obvious to optimize the present particle size to improve the efficacy of the formulation for removing pathogenic material from a patient. In this way, one would find the present range of 100 nm to 300 nm through routine experimentation. The prior art provides sufficient guidance to this end as Kang teaches magnetic nanoparticles with a size of 250 nm provide efficient magnetic separation in solution for purpose of capturing pathogens in flowing fluids with magnetic nanoparticles, which overlaps with the present range.
Applicant’s arguments have been fully considered but are not found persuasive. Regarding applicant’s argument that among Kang’s teachings are particle diameters that fall outside of applicant’s claimed range can be effective in the separation of certain bacteria, the examiner’s response is that a reference is not limited to examples and preferred embodiments but may be relied on all that it teaches. Iron oxide magnetic particles having an average particle size of 200 nm were prepared in Example 1 (paragraph 150), which demonstrated efficient magnetic separation in solution for purpose of capturing pathogens in flowing fluids with magnetic nanoparticles. The artisan would look to this teaching and understand that, although other diameters may be used depending on the type of pathogen, iron oxide magnetic particles having an average particle size of 200 nm demonstrated efficient magnetic separation in solution for purpose of capturing pathogens in flowing fluids with magnetic nanoparticles, which is sufficient motivation to use this particle size in a method of treating an infectious disease in an animal or human. Regarding applicant’s argument that the example in Chen contains PLGA, the examiner’s response is that a reference is not limited to example and preferred embodiments but may be relied on for all that it teaches. Regarding applicant’s argument that Kang does not teach a cell membrane, the examiner’s response is that Kang was relied on for its teaching that magnetic nanoparticles with a size of 250 nm provide efficient magnetic separation in solution for purpose of capturing pathogens in flowing fluids with magnetic nanoparticles (Title, Abstract, Conclusion).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL W DICKINSON whose telephone number is (571)270-3499. The examiner can normally be reached on M-F 9 AM to 7:30 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached on 571-272-0616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/PAUL W DICKINSON/Primary Examiner, Art Unit 1618
March 25, 2026
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