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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/14/2025 has been entered.
Drawings
The drawings are objected to because:
There is a typographical error in the title of Figure 10.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
The previous claim objections are withdrawn in light of the amendments.
Claims 14 and 17 are objected to because of the following informalities:
Regarding claim 14, in line 8, the term “a gel” should be “the gel” to refer back to “a gel” of the preamble in line 2.
Regarding claim 14, in line 8, the term “a cross-linking gradient” should be “the cross-linking gradient” to refer back to “a cross-linking gradient” of the preamble in line 2.
Regarding claim 14, in line 9, the term “a resulting gel” should be “the gel” to refer back to “a gel” of the preamble in line 2. Additionally, this removes a 35 U.S.C. § 112(b) rejection in claim 14, line 20, wherein “the gel” is recited, see below under 35 U.S.C. § 112(b) rejections.
Regarding claim 14, in line 14, the term “the crosslinking medium” should be “the cross-linking medium”.
Regarding claim 14, in lines 17-18, the term “the bottom side” could be “a bottom side”. This amendment is optional, under MPEP § 2173.05(e).
Regarding claim 14, in lines 20-21, the phrase “wherein the oxygen tension ranges in a deepest region of the gel reaches oxygen tension from 150 μmol/L to 210 μmol/L” should be “wherein the oxygen tension ranges from 150 μmol/L to 210 μmol/L in a deepest region of the gel” for clarity and grammar in the claim limitation.
Regarding claim 17, in line 3, between the term “sodium alginate, the” should be rephrased “sodium alginate and the”.
Regarding claim 17, in line 3, the term “the crosslinking medium” should be “the cross-linking medium”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The previous 35 U.S.C. § 112(a) rejection on oxygen tension (see Figs. 9 and 10) is withdrawn in light of the amended range, which is present in the originally filed application in the figures.
The previous 35 U.S.C. § 112(b) rejections are withdrawn in light of the amendments.
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 14 and 17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 14, the claim recites:
wherein the three-dimensional gradient substrate comprises the storage modulus G’ between 10 Pa and 3,000 Pa for shear strain frequencies from 0.01 Hz to 10 Hz
Specification support is found for some, but not all of the ranges/limitations claimed in Fig. 2 (for storage modulus and shear strain frequencies, specifically: the storage modulus G’ has unclear ranges in Fig. 5B and the shear strain frequency of 0.01 Hz is not supported in Figs. 2, 3, or 5B). In all, these figures do not show clear support for the claimed ranges, and therefore do not support the entire scope of the claims. Please see the MPEP § 2163.05(III), in part described below:
… analysis must take into account which ranges one skilled in the art would consider inherently supported by the discussion in the original disclosure.
MPEP § 2163.05(III)
Regarding the dependent claim 17, this claim is rejected for the same reason as the base claim upon which it depends.
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 14 and 17 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 14 recites the limitation “the salts” in line 7. There is insufficient antecedent basis for this limitation in the claim. This might be either “salts” or “a salt” depending on whether the term should be plural or singular, see related, additional 35 U.S.C. § 112(b) rejections in dependent claim 17, below.
Claim 14 recites the limitations “a gel” in line 2, “a gel” in line 8, and “a resulting gel” in line 9. This claim language becomes confusing when later in claim 14, line 20 claims the limitation “line 20, wherein “the gel” is recited. It is recommended that the last three instances of “gel” of claim 14 in lines 8, 9, and 20 should be “the gel” to correspond to “a gel” of claim 14, line 2.
Claim 14 recites the limitation “the culture medium” in line 7. There is insufficient antecedent basis for this limitation in the claim. Please amend to “a culture medium”.
Claim 17 recites the limitation “the polysaccharide” in line 2. There is insufficient antecedent basis for this limitation in the claim. The term “the polysaccharide” is singular rather than plural “polysaccharides” in the parent claim.
Claim 17 recites the limitation “the protein” in line 2. There is insufficient antecedent basis for this limitation in the claim. The term “the protein” is singular rather than plural “proteins” in the parent claim.
Claim 17 recites the limitation “the salt” in line 3. There is insufficient antecedent basis for this limitation in the claim. The term “the salt” is singular rather than plural “salts” in the parent claim.
Regarding the dependent claim 17, this claim is rejected for the same reason as the base claim upon which it depends.
Allowable Subject Matter
Claim 14 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. The rejection(s) under 35 U.S.C. § 112(a) must also be overcome.
Claim 17 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. The rejection(s) under 35 U.S.C. § 112(a) must also be overcome.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 14, the closest prior art is Marzorati (US 20120058551) in view of Allbritton (US 20190211296), Lourenço (“Bioengineering a novel 3D in vitro model of gastric mucosa for stomach permeability studies”), Deutsch (US 20070292837), and MacWilliams (“Luria Broth (LB) and Luria Agar (LA) Media and Their Uses Protocol”).
Regarding claim 14, Marzorati discloses a three-dimensional substrate (paragraph [0042] “2 compartments separated by a semi-permeable membrane; said membrane having an artificial mucus layer applied on the luminal site; and said module being characterized by anaerobic conditions at its luminal side and aerobic conditions at its basal side”) for microbial culture (paragraph [0044] “Caco-2 cells and/or HT29 cells”) comprising a gel with cross-linking (paragraph [0188] “a degree of polymerization” and in-depth discussion at paragraph [0006] for mucin side-chains being linked), wherein:
the base solution comprises proteins selected from the group consisting of: mucin (paragraph [0188] “a degree of polymerization” and in-depth discussion at paragraph [0006] for mucin side-chains being linked), and
water (paragraph [0086]).
Marzorati does not disclose:
A three-dimensional gradient substrate for microbial culture comprising a gel with a cross-linking gradient
obtained by: contacting a base solution and a cross-linking medium via a semipermeable membrane, wherein the base solution is located above the semipermeable membrane and the cross-linking medium is located below the semipermeable membrane; incubating the base solution with the cross-linking medium between 2 min and 20 h at a temperature between 4 °C to 25 °C to allow diffusion of the salts and the culture medium thereby forming a gel with a cross-linking gradient; and removing a resulting gel
wherein the base solution comprises polysaccharides selected from the group consisting of: sodium alginate and pectin
the base solution comprises … proteins selected from the group consisting of: serum albumin
the base solution comprises … sodium chloride
the crosslinking medium comprises salts selected from the group consisting of: calcium chloride and calcium gluconate
the culture medium selected from the group consisting of: Mueller Hinton and Luria Bertani, and distilled water,
wherein the culture medium and the salts range from the higher concentration at the bottom side of the three-dimensional gradient substrate to the lower concentration at the surface of the three-dimensional gradient substrate,
wherein the oxygen tension ranges in a deepest region of the gel reaches oxygen tension from 150 μmol/L to 210 μmol/L
and wherein the three-dimensional gradient substrate comprises the storage modulus G’ between 10 Pa and 3,000 Pa for shear strain frequencies from 0.01 Hz to 10 Hz
and wherein the three-dimensional gradient substrate has a thickness greater than 2 mm and equal to or less than 3 mm.
Regarding feature 1, specifically the phrase “gradient”, Allbritton discloses the limitation, see previous Office Action.
Regarding feature 2, the limitation is a product-by-process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” MPEP § 2113.
Regarding feature 3, Lourenço or Allbritton disclose the limitation, see previous Office Action.
Regarding feature 3, specifically the limitation “and pectin”, the limitation is claimed in the alternative. No further rejections are required at this time.
Regarding feature 4, the limitation “serum albumin” is claimed in the alternative. No further rejections are required at this time.
Regarding feature 5, Lourenço discloses the limitation, see previous Office Action.
Regarding feature 6, Deutsch discloses the limitation, see previous Office Action.
Regarding feature 7, MacWilliams discloses the limitation, see previous Office Action.
Regarding feature 8, Allbritton discloses the limitation, see previous Office Action.
Regarding the features 9-11, the prior art of record, alone or in combination, does not teach or fairly suggest these features within the claim environment.
Regarding the dependent claim 17, this claim contains allowable subject matter for the same reason as the base claim upon which it depends.
Additional Prior Art References
The prior art made of record and not relied upon is considered pertinent to Applicant’s disclosure.
Heywood (US 20170189454) – This invention describes a container that has a first chamber containing bacteria and a second chamber containing a buffer solution, and a barrier (such as a filter (paragraph [0147])) between the two chambers with a range of possible resulting oxygen saturation values between 0% and 100% (paragraph [0051]). The specific range of oxygen saturation currently claimed is not described.
Van Vliet (US 20170328888) – This invention describes a gradient viscoelastic hydrogel, but does not describe the specific polymers currently claimed.
Response to Arguments
Applicant’s arguments, see last paragraph of pg. 8 and pgs. 12-13, filed 11/14/2025, with respect to the claims have been fully considered and are persuasive. The 35 U.S.C. § 103 rejection over the claims have been withdrawn.
As previously disclosed in a prior Office Action:
Marzorati discloses, similarly to the claims (“via a semipermeable membrane” of claim 14), a semipermeable membrane (paragraph [0042] “2 compartments separated by a semi-permeable membrane; said membrane having an artificial mucus layer applied on the luminal site; and said module being characterized by anaerobic conditions at its luminal side and aerobic conditions at its basal side”) contacting a gel (paragraph [0188] “a degree of polymerization” and in-depth discussion at paragraph [0006] for mucin side-chains being linked).
Allbritton discloses layers up to 1.8 mm (paragraph [0018]).
Lourenço discloses gels with sodium chloride (pg. 69, under 2.4 3D culture of stomach fibroblasts within RGD-modified alginate matrices, “Alginate gel solution was prepared at 1 wt% in 0.9 wt% NaCl”, where “NaCl” is defined to be sodium chloride).
Deutsch discloses wherein in the crosslinking medium, the salt is calcium gluconate (paragraph [0163]).
MacWilliams discloses the culture medium selected from the group consisting of: Luria Bertani (pgs. 1-2), and distilled water (pg. 2, top of the page under the table).
In the current Office Action, the declaration under 37 CFR 1.132 filed 11/14/2025 is not sufficient to overcome the 35 U.S.C. § 103 rejections of claims 14 and 17 based upon the declaration’s arguments on pgs. 5 and 9-10. However, the amendments currently placed in the claims, specifically the last two paragraphs of independent claim 14, do overcome the 35 U.S.C. § 103 rejections:
wherein the oxygen tension ranges in a deepest region of the gel reaches oxygen tension from 150 µmol/L to 210 µmol/L, and
wherein the three-dimensional gradient substrate comprises the storage modulus G' between 10 Pa and 3,000 Pa for shear strain frequencies from 0.01 Hz to 10 Hz, and wherein the three-dimensional gradient substrate has a thickness greater than 2 mm and equal to or less than 3 mm.
Due to the declaration, unpersuasive evidence has been found that a gradient gel such as that currently claimed has greater capacity for growth of microorganisms across several species (Declaration, pg. 5). The alleged comparative prior art and literature (“Exceptionally superior to what [is] reported in literature …” on Declaration, pg. 5) is neither cited or provided. Therefore, the examiner is obligated to state that the declaration provides little evidence for unexpected results in comparison to this alleged prior art. However, comparisons were given to the prior art cited in the previous Office Action, describing relevant differences in the thickness of each of the substrates (none of the prior art were over 2 mm and less than or equal to 3 mm with the exact properties claimed for oxygen tension and storage modulus).
Additionally, the ability to singly culture or co-culture growth of aerobic and/or anaerobic microorganisms in the same gradient substrate at different heights within a thickness of greater than 2 mm and equal to or less than 3 mm is described in the Declaration (Declaration, pg. 7 and 10). However, the ability to co-culture growth of these microorganisms may not be commensurate with the scope of the claimed subject matter, as the claimed subject matter does not include a simultaneous co-culture or even a culture of a single microorganism. The culture of at least one microorganism, according to the Declaration, is one of the primary unexpected results differentiating the current invention from alleged prior art and literature (Declaration, pg. 5). The declaration is found unpersuasive, as although the preamble states “for microbial culture”, no microbes or cells are claimed, resulting in a scope mismatch between the declaration and the claims.
Therefore, the declaration refers only to the system described in the above referenced application and not to the individual claims of the application. Thus, there is no showing that the objective evidence of nonobviousness is commensurate in scope with the claims. See MPEP § 716.
However, in terms of overcoming 35 U.S.C. § 103, the claim limitations currently recited disclose the conditions for oxygen tension and storage modulus G’ under the range of a thickness from 2 mm (exclusive) to 3 mm (inclusive) of the three-dimensional gradient substrate thickness. No prior art could be found to teach an obvious combination of these limitations: 2-3 mm thick layer substrates of those claimed with internal gradients in oxygen, nutrients, and viscoelasticity. The current amendments regarding the three-dimensional gradient substrate properties overcome the 35 U.S.C. § 103 rejections.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHAN G ESPERON whose telephone number is 571-272-9807, and whose fax number is 571-273-8464. The examiner can normally be reached 9 am - 6 pm Monday through Thursday, and 9 am - 6 pm every other Friday.
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/N.G.E./Examiner, Art Unit 1799
/MICHAEL A MARCHESCHI/Supervisory Patent Examiner, Art Unit 1799