DETAILED ACTION
Applicant’s response filed 11/6/2025 has been fully considered. The following rejections and/or objections are either reiterated or newly applied.
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 3-8, 10, and 13 are pending and under consideration in this action. Claims 1-2, 9, and 11-12 were canceled in the amendment filed 11/6/2025.
Priority
This application claims foreign priority from Chinese Application No. CN202011106439.4, filed 10/15/2020, as reflected in the filing receipt mailed 10/27/2021. Acknowledgment is made of applicant's claim for foreign priority under 35 U.S.C. 119(a)-(d). Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. The claims to the benefit of priority are acknowledged and the effective filing date of claims 3-8, 10, and 13 is 10/15/2020.
Claim Objections
Withdrawn Objections
The objections to claims 5-6 and 8-9 are withdrawn in view of Applicant’s amendments to the claims filed 11/6/2025.
Maintained Objections
Claims 7 and 13 are objected to because of the following informalities:
In claims 7 and 13, "Aspergillus flavus" should be italicized.
Appropriate correction is required.
Newly Recited Objections
Claim 3 is objected to because of the following informalities:
Claim 3 recites the phrase “and the analysis including qualitative analysis of the aflatoxin contamination risk warning molecule…” in lines 19-20 of the claim should be corrected to “and the analysis includes qualitative analysis of the aflatoxin contamination risk warning molecule…” for clarity.
Appropriate correction is required.
Withdrawn Rejections
35 U.S.C. 103
The rejection of claim 3 under 35 U.S.C. 103 as being unpatentable over Jiang et al. in view of Silva et al. is withdrawn in view of Applicant’s amendments to the claims filed 11/6/2025 and Applicant’s arguments were found persuasive (Applicant’s remarks, Pg. 14-19).
The rejection of claim 4 under 35 U.S.C. 103 as being unpatentable over Jiang et al. in view of Silva et al. and Cheng et al. is withdrawn for the same reasons as described for claim 3 above.
The rejection of claims 5, 7, and 13 under 35 U.S.C. 103 as being unpatentable over Jiang et al. in view of Silva et al., Cheng et al. and Xie et al. is withdrawn for the same reasons as described for claim 3 above.
The rejection of claims 8-9 and 11 under 35 U.S.C. 103 as being unpatentable over Jiang et al. in view of Silva et al. and Xie et al. is withdrawn for the same reasons as described for claim 3 above.
The rejection of claim 10 under 35 U.S.C. 103 as being unpatentable over Jiang et al. in view of Silva et al., Xie et al., and Lin et al. is for the same reasons as described for claim 3 above.
Claim Rejections - 35 USC § 112(b)
Withdrawn Rejections
The rejection of claims 1-2 and 10 under 35 U.S.C. 112(b) as being indefinite is withdrawn in view of Applicant’s cancelation of claims 1-2 and Applicant’s amendments the claims filed 11/6/2025.
Newly Recited Rejections
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 3-8, 10 and 13 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.
This rejection is newly recited and necessitated by claim amendment.
Claim 3 recites the limitation “wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) and C19H1407 comprise 355.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da” in lines 34-37 of the claim. The metes and bounds of the claim are rendered indefinite due to the lack of clarity. According to specification para. [0017], the peaks for 5-MST should be “350.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da”. The peak for 5-MST of 355.0809 Da recited in amended claim 3 does not match any of the 5-MST values found in the specification (including those in Para. [0017] or [0023]/Table 1). For the purposes of compact prosecution, this is interpreted as a typographical error, and the peak of 355.0809 Da is interpreted to be 350.0809 Da; however, correction is respectfully requested. Claims 4-8, 10 and 13 are also rejected due to their dependency from claim 3.
Claim Rejections - 35 USC § 101
Maintained Rejections
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 3-8, 10, and 13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite both (1) mathematical concepts (mathematical relationships, formulas or equations, or mathematical calculations) and (2) mental processes, i.e., concepts performed in the human mind (including observations, evaluations, judgements or opinions) (see MPEP § 2106.04(a)).
Any newly recited portions herein are necessitated by claim amendment.
Step 1:
In the instant application, claims 3-8, 10, and 13 are directed towards a method, which falls into one of the categories of statutory subject matter (Step 1: YES).
Step 2A, Prong One:
In accordance with MPEP § 2106, claims found to recite statutory subject matter (Step 1: YES) are then analyzed to determine if the claims recite any concepts that equate to an abstract idea, law of nature or natural phenomenon (Step 2A, Prong One). The following instant claims recite limitations that equate to one or more categories of judicial exceptions:
Claim 3 recites a mental process and a mathematical concept in “performing modeling with a chemometrics method by using the content of one or more of the aflatoxin contamination risk warning molecules as a variable to obtain a classification prediction model, inputting the quantitative result of the aflatoxin contamination risk warning molecule, and outputting a risk assessment result based on the classification prediction model to warn aflatoxin contamination in the sample”; a mental process (i.e., an evaluation of the quantitative input data for the risk warning molecules) in “wherein aflatoxin contamination risk warning molecule is 5-methoxysterigmatocystin (5-MST) or a combination of the 5-methoxysterigmatocystin (5-MST) and one or more than one of versiconol (VOH) and versicolorin B (Ver B)”; and mental process and a mathematical concept in “the analysis including qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule, wherein the qualitative analysis of the aflatoxin contamination risk warning molecule comprises: determining a mass deviation within 5 ppm according to the accurate mass number of the primary mass spectrometry of the warning molecule, and then comparing main characteristic ion peaks of the secondary mass spectrometry in combination with the secondary mass spectrogram to perform the qualitative analysis, wherein the quantitative analysis of the aflatoxin contamination risk warning molecule comprises: in combination with the internal standard substance, performing the quantitative analysis based on a standard curve of each aflatoxin contamination risk warning molecule of a ratio of a chromatographic peak area to a peak area of an internal standard-warning molecule concentration”.
Claim 4 recites a mathematical concept in “wherein the chemometrics method is a multivariate statistical analysis method including hierarchical cluster analysis, least partial square orthogonal projection or random forest”.
Claim 5 recites a mathematical concept in “a quantitative value of the warning molecule is directly input into the classification prediction model to predict the aflatoxin contamination risk”.
Claim 6 recites a mental process and a mathematical concept in “if the content of 5-methoxysterigmatocystin is greater than a threshold value of 34.7 μg/kg, whether the content of Ver B is greater than 96.35 μg/kg is further used to determine the contamination risk of the sample, if the content of Ver B is greater than 96.35 μg/kg, the sample is a high-risk aflatoxin contamination sample, and if the content of Ver B is less than or equal to 96.35 μg/kg, the sample is a medium-risk aflatoxin contamination sample; and then the medium-risk sample is further input into the accurate classification prediction model for verification”.
Claims 7 and 13 recite a mental process and a mathematical concept in “wherein a sample with the aflatoxin content higher than a national limit standard is directly identified as a high-risk sample, which is the suspected sample”.
These recitations are similar to the concepts of collecting information, and displaying certain results of the collection and analysis in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016)), and organizing and manipulating information through mathematical correlations in Digitech Image Techs., LLC v Electronics for Imaging, Inc. (758 F.3d 1344, 111 U.S.P.Q.2d 1717 (Fed. Cir. 2014)) that the courts have identified as concepts that can be practically performed in the human mind or mathematical relationships.
The abstract ideas recited in the claims are evaluated under the broadest reasonable interpretation (BRI) of the claim limitations when read in light of and consistent with the specification, and are determined to be directed to mental processes that in the simplest embodiments are not too complex to practically perform in the human mind. Additionally, the recited limitations that are identified as judicial exceptions from the mathematical concepts grouping of abstract ideas are abstract ideas irrespective of whether or not the limitations are practical to perform in the human mind. The instant claims must therefore be examined further to determine whether they integrate the abstract idea into a practical application (Step 2A, Prong One: YES).
Step 2A, Prong Two:
In determining whether a claim is directed to a judicial exception, further examination is performed that analyzes if the claim recites additional elements that when examined as a whole integrates the judicial exception(s) into a practical application (MPEP § 2106.04(d)). A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. The claimed additional elements are analyzed to determine if the abstract idea is integrated into a practical application (MPEP § 2106.04(d)(I)). If the claim contains no additional elements beyond the abstract idea, the claim fails to integrate the abstract idea into a practical application (MPEP § 2106.04(d)(III)). The following claims recite limitations that equate to additional elements:
Claim 3 recites “weighing a quantitative sample, extracting the aflatoxin contamination risk warning molecule to obtain a sample extract, and detecting and analyzing the same extract to obtain a quantitative result of the aflatoxin contamination risk warning molecule”; “wherein the detecting and analyzing of the sample extract comprises: subjecting the sample to detection and analysis by liquid chromatography-high resolution mass spectrometry”; and “wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) and C19H1407 comprise 355.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da; the secondary mass spectrometry ion peaks of the warning molecule versiconol (VOH) comprise: 329.06546Da, 341.09506Da, and 359.07596Da; and the main secondary mass spectrometry ion peaks of the warning molecule versicolorin B (Ver B) comprise: 311.0542Da, 311.0187Da, and 283.0238Da”.
Claims 5 and 6 further recite “after the sample is cultured for 3-4 days, the sample is taken to detect the aflatoxin contamination risk warning molecule”.
Claims 7 and 13 further recite “screening a suspected sample, pre-processing the screened suspected sample, detecting the aflatoxin contamination risk warning molecule, and outputting the risk assessment result based on the classification prediction model to conduct warning assessment of the risk of aflatoxin contamination of the sample, which includes: detecting the aflatoxin content of the sample, and subjecting a sample in which aflatoxin is not detected or the aflatoxin content does not exceed the standard to an accelerated microbial metabolism culture experiment, wherein Aspergillus flavus will grow in the suspected contaminated sample, quenching the suspected sample with liquid nitrogen and grinding for later use, and detecting the aflatoxin content of the sample”.
Claim 8 further recites “wherein the sample is an agricultural product or food; extracting the aflatoxin contamination risk warning molecule comprises: performing first extraction by using a solution with a volume ratio of methanol to acetonitrile to water being (2-4): (2-4):(0-1), and then performing second extraction by using a solution with a volume ratio of methanol to dichloromethane to ethyl acetate being (1-3):(1-2):(1-2) to extract the aflatoxin contamination risk warning molecule, and then centrifugating at a high speed to obtain the sample extract”.
Claim 10 further recites “wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry comprises: performing chromatographic separation using a C18 reverse chromatographic column, and an acquisition mode is divided into a positive ion mode and a negative ion mode which are operated separately, and the acquisition mode is a data-dependent acquisition mode; and performing the qualitative analysis and the quantitative analysis by simultaneously acquiring primary mass spectrometry data and secondary fragment ion data, and thereby obtaining the analysis results of the warning molecule; and wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry contains an internal standard substance, wherein when the acquisition mode is the negative ion mode, the internal standard substance is camphoric acid, and when the acquisition mode is the positive ion mode, the internal standard substance is 2-chlorophenylalanine”.
Regarding the above cited limitations in claims 3, 5-8, 10, and 13 of (i) weighing a sample (claim 3); (ii) extracting the aflatoxin warning molecule (claims 3 and 8); (iii) detecting and analyzing the extracted molecule (claim 3); (iv) subjecting the sample to detection and analysis by liquid chromatography-high resolution mass spectrometry (claim 3); (v) wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) and C19H1407 comprise 355.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da; the secondary mass spectrometry ion peaks of the warning molecule versiconol (VOH) comprise: 329.06546Da, 341.09506Da, and 359.07596Da; and the main secondary mass spectrometry ion peaks of the warning molecule versicolorin B (Ver B) comprise: 311.0542Da, 311.0187Da, and 283.0238Da (claim 3); (vi) after the sample is cultured for 3-4 days, the sample is taken to detect the warning molecule (claims 5 and 6); (vii) screening and pre-processing the sample (claims 7 and 13); (viii) outputting the risk assessment (claims 7 and 13); (ix) subjecting the sample to a standard accelerated microbial metabolism culture experiment (claims 7 and 13); (x) quenching and grinding the suspected sample (claims 7 and 13); (xi) the sample is an agricultural product or food (claim 8); (xii) centrifuging at high speed to obtain the sample extract (claim 8); (xiii) performing chromatographic separation using a C18 reverse chromatographic column (claim 10); (xiv) an acquisition mode is divided into a positive ion mode and a negative ion mode which are operated separately, and the acquisition mode is a data-dependent acquisition mode (claim 10); (xv) performing the qualitative analysis and the quantitative analysis by simultaneously acquiring primary mass spectrometry data and secondary fragment ion data, and thereby obtaining the analysis results of the warning molecule (claim 10); and (xvi) wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry contains an internal standard substance, wherein when the acquisition mode is the negative ion mode, the internal standard substance is camphoric acid, and when the acquisition mode is the positive ion mode, the internal standard substance is 2-chlorophenylalanine (claim 10). These limitations equate to insignificant, extra-solution activity of mere data gathering because these limitations gather data before or after the recited judicial exceptions of performing modeling with a chemometrics method, with the aflatoxin risk warning molecule data as an input variable (see MPEP § 2106.04(d)). As such, claims 3-8, 10, and 13 are directed to an abstract idea (Step 2A, Prong Two: NO).
Step 2B:
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself (Step 2B). The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims recite additional elements that equate to well-understood, routine and conventional (WURC) limitations (MPEP § 2106.05(d)). Instant claims 3, 5-8, 10, and 13 recite the same additional elements described in Step 2A, Prong Two above.
Regarding the above cited limitations in claims 3, 5-8, 10, and 13 of (i) weighing a sample (claim 3); (ii) extracting the aflatoxin warning molecule (claims 3 and 8); (iii) detecting and analyzing the extracted molecule (claim 3); (iv) subjecting the sample to detection and analysis by liquid chromatography-high resolution mass spectrometry (claim 3); (v) wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) and C19H1407 comprise 355.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da; the secondary mass spectrometry ion peaks of the warning molecule versiconol (VOH) comprise: 329.06546Da, 341.09506Da, and 359.07596Da; and the main secondary mass spectrometry ion peaks of the warning molecule versicolorin B (Ver B) comprise: 311.0542Da, 311.0187Da, and 283.0238Da (claim 3); (vi) after the sample is cultured for 3-4 days, the sample is taken to detect the warning molecule (claims 5 and 6); (vii) screening and pre-processing the sample (claims 7 and 13); (viii) outputting the risk assessment (claims 7 and 13); (ix) subjecting the sample to a standard accelerated microbial metabolism culture experiment (claims 7 and 13); (x) quenching and grinding the suspected sample (claims 7 and 13); (xi) the sample is an agricultural product or food (claim 8); (xii) centrifuging at high speed to obtain the sample extract (claim 8); (xiii) performing chromatographic separation using a C18 reverse chromatographic column (claim 10); (xiv) an acquisition mode is divided into a positive ion mode and a negative ion mode which are operated separately, and the acquisition mode is a data-dependent acquisition mode (claim 10); (xv) performing the qualitative analysis and the quantitative analysis by simultaneously acquiring primary mass spectrometry data and secondary fragment ion data, and thereby obtaining the analysis results of the warning molecule (claim 10); and (xvi) wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry contains an internal standard substance, wherein when the acquisition mode is the negative ion mode, the internal standard substance is camphoric acid, and when the acquisition mode is the positive ion mode, the internal standard substance is 2-chlorophenylalanine (claim 10). These limitations are considered to be insignificant extra-solution activity of mere data gathering. These steps are incidental to the primary process of performing modeling with a chemometrics method, wherein the aflatoxin molecule information is merely an input variable (see MPEP § 2106.05(g)).
Additionally, regarding the above cited limitations in claims 3, 5-8, 10, and 13 of (i)-(xvi). These limitations when viewed individually and in combination, are WURC limitations as taught by Zhang et al. (Toxins 2020, 12(9), 539; published 08/21/2020; previously cited) and Xie et al. (Analytical Chemistry, 2018, 90, 14331-14338; published 11/16/2018; previously cited). In the review, Zhang et al. discloses sample preparation and chromatographic methods for detection of aflatoxins in food (Title). Zhang et al. discloses methods for sample preparation (Pg. 3, Section 2), extraction (Pg. 6, Section 2.2), detecting and analyzing (Pg. 14, Section 3), liquid chromatography (Pg. 15, Section 3.2), LCMS (Pg, 18, Section 3.3), and LC-MS for quantitative analysis, including the use of internal standards (Pg. 19, Section 3.3.2) (limitations (i)-(v), (viii), (xi), (xiii)-(xvi)). Xie et al. disclose methods for monitoring metabolite production during aflatoxin biosynthesis (Title). Xie et al. also discloses methods for culturing from Aspergillus flavus (Pg. 14332, Col. 2, Para. 3), quenching microbial cell cultures (Supporting Information, Pg. S-3, Para. 2 – Pg. S-4, Para. 1), and centrifugation to release intracellular metabolites (Pg. 14332, Col. 2, Para. 4) (limitations (vi)-(vii), (ix)-(x), (xii)).
These additional elements do not comprise an inventive concept when considered individually or as an ordered combination that transforms the claimed judicial exception into a patent-eligible application of the judicial exception. Therefore, the instant claims do not amount to significantly more than the judicial exception itself (Step 2B: NO). As such, claims 3-8, 10, and 13 are not patent eligible.
Response to Arguments Under 35 U.S.C. 101
Applicant’s arguments filed 11/6/2025 have been fully considered but they are not persuasive.
Applicant argues that the technical feature of “the step of qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule" integrates the judicial exception into a practical application, satisfying the requirement of Step 2A, Prong Two (Applicant’s Remarks, Pg. 12-13). Applicant’s arguments are not persuasive for the following reasons:
MPEP 2106.04(d)(II) recites:
The analysis under Step 2A Prong Two is the same for all claims reciting a judicial exception, whether the exception is an abstract idea, a law of nature, or a natural phenomenon (including products of nature). Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application, using one or more of the considerations introduced in subsection I supra, and discussed in more detail in MPEP §§ 2106.04(d)(1), 2106.04(d)(2), 2106.05(a) through (c) and 2106.05(e) through (h).
The limitation of “the step of qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule” has been identified as a judicial exception in Step 2A, Prong One above. The integration of a judicial exception into a practical application can only be achieved by additional elements, not by a limitation that recites a judicial exception. As described in additional limitations in amended claim 3, the qualitative analysis includes “determining a mass deviation within 5 ppm according to the accurate mass number of the primary mass spectrometry of the warning molecule”, and the quantitative analysis includes “performing the quantitative analysis based on a standard curve of each aflatoxin contamination risk warning molecule of a ratio of a chromatographic peak area to a peak area of an internal standard-warning molecule concentration”. Both the qualitative and quantitative analysis recite judicial exceptions. Therefore, the limitation recited by Applicant is not considered for the integration of the judicial exception into a practical application. This argument is thus not persuasive.
Applicant argues the limitation of “the step of qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule” could ensure the quality and safety of agricultural products by early warning of toxigenic Aspergillus flavus in agricultural products. The method in the amended claim 3 is eligible as improvements to technology instead of being directed to abstract ideas and satisfied the requirement of Step 2B. (Applicant’s Remarks, Pg. 13-14). Applicant’s arguments are not persuasive for the following reasons:
Similar to the arguments directly above, the limitation of “the step of qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule” recites a judicial exception. Since the limitation does not recite an additional element, it has not been considered under Step 2B. The recited limitation is thus not considered as an improvement in the early warning of toxigenicity for agricultural products. This argument is thus not persuasive.
Double Patenting
Maintained Rejections
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 3-5, 7-8, and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 12,038,420 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and U.S. Patent No. 12,038,420 B2 are drawn to a method for determining aflatoxin contamination risk using 5-methoxysterigmatocystin (5-MST) and versiconol (VOH) or versicolorin B (Ver B) as warning molecules.
Any newly recited portions herein are necessitated by claim amendment.
Instant Application (17/502,064)
U.S. Patent No. 12,038,420 B2
Pending Claim No.
Limitations
Issued Claim No.
Limitations
3
A method for warning aflatoxin contamination risk based on an aflatoxin contamination risk warning molecule, comprising the following steps:
1
An early warning method before the occurrence of aflatoxin contamination, comprising the following steps:
weighing a quantitative sample, extracting the aflatoxin contamination risk warning molecule to obtain a sample extract, and detecting and analyzing the same extract to obtain a quantitative result of the aflatoxin contamination risk warning molecule; and
weighing a quantitative sample, extracting toxins from the sample to obtain a sample extract, and subjecting the sample extract to detection and analysis by liquid chromatography-high resolution mass spectrometer, collecting mass spectrometry information, and performing qualitative analysis based on the mass spectrometry information to obtain qualitative results of versiconol (YOH), versicolorin B (Ver B), 5-methoxysterigmatocystin (5-MST), a warning molecule A and a warning molecule B…
performing modeling with a chemometrics method by using the content of one or more of the aflatoxin contamination risk warning molecules as a variable to obtain a classification prediction model, inputting the quantitative result of the aflatoxin contamination risk warning model to warn aflatoxin contamination of the sample; wherein the aflatoxin contamination risk warning molecule is 5-methoxysterigmatocystin (5-MST) or a combination of the 5-methoxysterigmatocystin (5-MST) and one or more than one of versiconol (VOH) and versicolorin B (Ver B);
a risk of aflatoxin contamination of the sample is assessed to find a aflatoxin contamination sample including toxigenic Aspergillus flavus, aflatoxin or a combination thereof by performing modeling with a chemometrics method by using the content of warning molecule A, or a content of warming molecule B, or a content of one or more of the warning molecule A and the warning molecule B and one or more of versiconol (VOH), versicolorin B (Ver B), and 5-methoxysterigmatocystin (5-MST) as a variable to obtain a classification prediction model, inputting the quantitative results of the warning molecules for a toxigenic strain of Aspergillus flavus, and outputting a risk assessment results based on the classification prediction model.
wherein the detecting and analyzing of the sample extract comprises: subjecting the sample to detection and analysis by liquid chromatography-high resolution mass spectrometry,
…and subjecting the sample extract to detection and analysis by liquid chromatography-high resolution mass spectrometer, collecting mass spectrometry information…
and the analysis including qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule,
…performing qualitative analysis based on the mass spectrometry information to obtain qualitative results of versiconol (VOH), versicolorin B (Ver B), 5-methoxysterigmatocystin (5-MST), a warning molecule A and a warning molecule B, and according to its corresponding chromatographic peak area in combination with an internal standard, performing quantitative analysis based on a standard curve of the chromatographic peak area of each warning molecule/the peak area of the internal standard warning molecule concentration to obtain quantitative results of these warning molecules…
wherein the qualitative analysis of the aflatoxin contamination risk warning molecule comprises: determining a mass deviation within 5 ppm according to an accurate mass number of a primary mass spectrometry of the aflatoxin contamination risk warning molecule, and then comparing main characteristic ion peaks of a secondary mass spectrometry in combination with a secondary mass spectrogram to perform the qualitative analysis,
wherein, the qualitative analysis is performed by determining primary and secondary mass spectrometry information of the warning molecules in the sample, comparing the accurate mass number in the primary mass spectrometry of each warning molecule with a theoretical value thereof to obtain a deviation of the mass spectrometry being within 5 ppm, and then comparing main characteristic ion peaks of the secondary mass spectrometry in combination with the secondary mass spectrometry information; …
wherein the quantitative analysis of the aflatoxin contamination risk warning molecule comprises: in combination with an internal standard substance, performing the quantitative analysis based on a standard curve of each aflatoxin contamination risk warning molecule of a ratio of a chromatographic peak area to a peak area of an internal standard-warning molecule concentration,
…in combination with an internal standard, performing quantitative analysis based on a standard curve of the chromatographic peak area of each warning molecule/the peak area of the internal standard-warning molecule concentration to obtain quantitative results of the warning molecules; …
wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) and C19H14O7 comprise 355.0809Da, 340.0571Da, 322.04675Da, 311.05469Da and 285.0098Da;
9
The method according to claim 1, wherein the main secondary mass spectrometry ion peaks of the warning molecule 5-methoxysterigmatocystin (5-MST) comprise 350.0809 Da, 340.0571 Da, 322.04675 Da, 311.05469 Da and 285.0098 Da
the secondary mass spectrometry ion peaks of the warning molecule versiconol (VOH) comprise: 329.06546Da, 341.09506Da, and 359.07596Da; and
the secondary mass spectrometry ion peaks of the warning molecule versiconol (VOH) comprise: 329.06546 Da, 341.09506 Da, and 359.07596 Da;
the main secondary mass spectrometry ion peaks of the warning molecule versicolorin B (Ver B) comprise: 311.0542Da, 311.0187Da, and 283.0238Da.
the main secondary mass spectrometry ion peaks of the warning molecule versicolorin B (Ver B) comprise: 311.0542 Da, 311.0187 Da, and 283.0238 Da.
4
The method according to claim 3, wherein the chemometric method is a multivariate statistical analysis method including hierarchical cluster analysis, least partial square orthogonal projection or random forest.
2
The method according to claim 1, wherein the chemometrics method is a multivariate statistical analysis method including hierarchical cluster analysis, least partial square orthogonal projection, and random forest.
5
The method according to claim 3, wherein after the sample is cultured for 3-4 days, the sample is taken to detect the aflatoxin contamination risk warning molecule, and a quantitative value of the aflatoxin contamination risk warning molecule is directly input into the classification prediction model to predict the aflatoxin contamination risk.
3
The method according to claim 1, wherein after the sample is cultured for 3-4 days, the sample is taken for detection of warning molecules for toxigenic Aspergillus flavus, and the quantitative values of versiconol (VOH), versicolorin B (Ver B), 5-methoxysterigmatocystin (5-MST), the warning molecule A and the warning molecule B are input into the classification prediction model to predict aflatoxin risk.
7
The method according to claim 3, further comprising screening a suspected sample, pre-processing the screened suspected sample, detecting the aflatoxin contamination risk warning molecule, and outputting the risk assessment result based on the classification prediction model to conduct warning assessment of the risk of aflatoxin contamination of the sample, which includes:
4
The method according to claim 1, comprising screening a suspected sample, pre-treating the screened suspected sample, detecting the warning molecules for toxigenic Aspergillus, and outputting risk assessment results based on the classification prediction model to perform the risk assessment for the aflatoxin contamination of the sample, which includes:
detecting the aflatoxin content of the sample, and subjecting a sample in which aflatoxin is not detected or the aflatoxin content does not exceed the standard to an accelerated microbial metabolism culture experiment, wherein Aspergillus flavus will grow in the suspected contaminated sample, quenching the suspected sample with liquid nitrogen and grinding for later use, and detecting the aflatoxin content of the sample, wherein a sample with the aflatoxin content higher than a national limit standard is directly identified as a high-risk sample, which is the suspected sample.
detecting the aflatoxin content of the sample, and subjecting a sample in which aflatoxin is not detected or the aflatoxin content does not exceed the standard to an accelerated microbial metabolism culture experiment, wherein Aspergillus will grow in a suspected contaminated sample, quenching the suspected sample by liquid nitrogen and grinding for later use, and detecting the aflatoxin content of the sample, wherein the sample with the aflatoxin content higher than a national limit is directly identified as a high-risk sample, which is the suspected sample.
8
The method according to claim 3, wherein the sample is an agriculture product or food;
5
The method according to claim 1, wherein the sample as an agriculture product or food.
extracting the aflatoxin contamination risk warning molecule comprises: performing first extraction by using a solution with a volume ratio of methanol to acetonitrile to water being (2-4):(2-4):(0-1), and then performing second extraction by using a solution with a volume ratio of methanol to dichloromethane to ethyl acetate being (1-3):(1-2):(1-2) to extract the aflatoxin contamination risk warning molecule, and then centrifugating at a high speed to obtain the sample extract.
6
The method according to claim 1, wherein extracting the warning molecules for the toxigenic strain of Aspergillus flavus comprises: performing first extraction by using a solution with a volume ratio of methanol to acetonitrile to water being (2-4):(2-4):(0-1), and then performing second extraction by using a solution with a volume ratio of methanol to dichloromethane to ethyl acetate being (1-3):(1-2):(1-2) to extract the warning molecules for the toxigenic strain of Aspergillus flavus, and then centrifugating at a high speed to obtain the sample extract.
10
The method according to claim 3, wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry comprises: performing chromatographic separation by using a C18 reverse chromatographic column, and an acquisition mode is divided into a positive ion mode and a negative ion mode which are operated separately, and the acquisition mode is a data-dependent acquisition mode; and performing the qualitative and quantitative analysis by simultaneously acquiring primary mass spectrometry data and secondary fragment ion data, and thereby obtaining the analysis results of the aflatoxin contamination risk warning molecule,
7
The method according to claim 1, wherein during analysis by the liquid chromatography-high resolution mass spectrometer, a chromatographic column is a C18 reverse chromatographic column, and a mass spectrometry analysis acquisition mode is divided into a positive ion mode and a negative ion mode run which are operated separately; the acquisition mode is a data-dependent acquisition mode, and the primary mass spectrometry data and secondary fragment ion data are acquired simultaneously to perform qualitative and quantitative analysis, thereby obtaining the analysis results of the warning molecules.
wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometry contains an internal standard substance, wherein when the acquisition mode is the negative ion mode, the internal standard substance is camphoric acid, and when the acquisition mode is the positive ion mode, the internal standard substance is 2-chlorophenylalanine.
8
The method according to claim 1, wherein the detection and analysis by the liquid chromatography-high resolution mass spectrometer contains an internal standard substance, and the internal standard is camphoric acid (a negative ion mode) and 2-chlorophenylalanine (a positive ion mode).
Accordingly, pending claims 3-5 and 7-12 are not patentably distinct from issued claims 1-9 of U.S. Patent No. 12,038,420 B2.
Response to Arguments of Double Patenting
Applicant’s arguments filed 11/6/2025 have been fully considered but they are not persuasive.
Applicant argues that the amendment of "the aflatoxin contamination risk warning molecule" recited in claim 3 to "5-methoxysterigmatocystin (5-MST) or a combination of the 5-methoxysterigmatocystin (5-MST) and one or more than one of versiconol (VOH) and versicolorin B (Ver B)” as well as including the technical features of "the analysis includes qualitative analysis of the aflatoxin contamination risk warning molecule and quantitative analysis of the aflatoxin contamination risk warning molecule" make it so there are obvious variations between amended claim 3 and claims 1-9 of U.S. Patent No. 12,038,420 B2, and are therefore patentably distinct (Applicant’s Remarks, Pg. 19-20). Applicant’s arguments are not persuasive for the following reasons:
Claim 1 of U.S. Patent No. 12,038,420 B2 discloses “An early warning method before the occurrence of aflatoxin contamination…performing qualitative analysis based on the mass spectrometry information to obtain qualitative results of versiconol (VOH), versicolorin B (Ver B), 5-methoxysterigmatocystin (5-MST), a warning molecule A and a warning molecule B…performing quantitative analysis based on a standard curve of the chromatographic peak area of each warning molecule/the peak area of the internal standard warning molecule concentration to obtain quantitative results of these warning molecules…”. The qualitative analysis and quantitative analysis recited in instant claim 3 are therefore recited in claim 1 of U.S. Patent No. 12,038,420 B2, as described in the rejection above. Furthermore, claim 1 of U.S. Patent No. 12,038,420 B2 discloses “performing modeling with a chemometrics method by using a content of one or more of the warning molecule A and the warning molecule B and one or more of versiconol (VOH), versicolorin B (Ver B) and 5-methoxysterigmatocystin (5-MST) as a variable to obtain a classification prediction model”. The broadest reasonable interpretation (BRI) of this limitation includes only 5-methoxysterigmatocystin (5-MST) or a combination of the 5-methoxysterigmatocystin (5-MST) and one or more than one of versiconol (VOH) and versicolorin B (Ver B), as recited in instant claim 3. Therefore, instant claims 3-5 and 7-12 are not patentably distinct from claims 1-9 of U.S. Patent No. 12,038,420 B2. This argument is thus not persuasive.
Conclusion
No claims allowed.
Claims 3-8, 10, and 13 are free from the prior art because the prior art does not fairly suggest or teach a prediction model using 5-methoxysterigmatocystin (5-MST) or a combination of 5-MST and one or more of versiconol or versicolorin B as a risk warning molecule for aflatoxin contamination. The closest prior art is Jiang et al. (Food Additives & Contaminants: Part A, 36(2), 308-319 (2019); previously cited). Jiang et al. discloses the generation of an aflatoxin risk probabilistic model for positive and negative contamination cases using versicolorin A, a precursor to aflatoxin B1. However, Jiang et al. does not teach that the model uses 5-MST, versiconol, or versicolor B as the risk warning molecules, or the analysis of the molecules by LC-MS, as disclosed in instant claim 3. Claims 4-8, 10, and 13 are free from the prior art due to their dependency on claim 3.
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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/D.P.S./Examiner, Art Unit 1687
/Karlheinz R. Skowronek/Supervisory Patent Examiner, Art Unit 1687