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 Claims
The arguments filed on 09/12/2025 are acknowledged and have been fully considered. Claims 14-28 have been withdrawn. Applicants’ amendments are supported by the originally filed disclosure.
No new matter has been added.
Thus, claims 1-13 will be examined on the merits herein.
Withdrawn Rejections
Nonstatutory Double Patenting:
The terminal disclaimer filed on 09/12/2025 over US11951124 has been reviewed and is accepted. The terminal disclaimer has been recorded. Said rejection is thus withdrawn.
Rejections Maintained and Made Again
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.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sredni (US 20090269289 A1) and Chou et al (Int J Environ Res Public Health; 2016) in view of Lu et al (Langmuir; 2005) and in further in view of Wang et al (The Journal of Supercritical Fluids;2004).
Sredni discloses methods for treating skin conditions such as basal cell carcinoma and/or actinic keratosis are provided, which are affected by administering a pharmaceutically effective amount of a tellurium-containing compound (see entire document, for instance, abstract). Sredni teaches the method comprising administering to the subject a therapeutically effective amount of at least one tellurium-containing compound (see entire document, for instance, claim 41). Sredni teaches polyethylene glycol ([0208] - [0215]).
Chou discloses tellurium-based nanomaterials have been approved as new and efficient antibacterial agents (see entire document, for instance, abstract). Chou teaches an approach to directly grow tellurium nanowires (Te NWs) onto commercial carbon fiber fabrics and demonstrated their antibacterial activity (see entire document, for instance, abstract). Chou teaches that the fabrics with Te and Te-Au NWs can become antimicrobial products in the near future (conclusion page 202).
However, they do not expressly disclose method steps of coated metal nanoparticles attached to tellurium nanowires, wherein the tellurium nanowires have a wire core comprising tellurium, and wherein the coated metallic nanoparticles have a metallic core and an outer coating comprising a polymer. Lu and Wang et al remedy this the deficiency.
Lu et al disclose starch, an economical and safe carbohydrate, has been found to be not only an effective reducing agent but also a new morphology-directing agent for the synthesis of tellurium nanowires using commercial H2TeO4 precursor (see entire document, for instance, Abstract). The obtained tellurium nanowires are of single-crystal in nature, with an average diameter of ∼25 nm (reads on claim 10) (abstract). A possible synthetic mechanism involves the chain-shaped bioorganic molecule acting as a template for the one-dimensional growth of inorganic tellurium (Abstract). The effects of different chain-shaped structures and concentrations of biomolecules on the nanowire morphology have been investigated and different one-dimensional structures, including thick rods, short nanowires, bunched nanowires, and assembled spikelet structures, have been fabricated (Abstract). These experimental results have been found to be useful in substantiating the proposed synthetic mechanism (Abstract). Lu discloses in the results and discussion discloses the X-ray diffraction (XRD) pattern shown in Figure 1 confirms the realization of tellurium crystallites from H2TeO4‚2H2O precursor powders using starch as the reducing agent. All peaks in this pattern can be indexed as the hexagonal phase of tellurium (Te, JCPDS, No. 36- 1452), and no other peaks can be found, indicating that only elemental tellurium grains with high crystallinity and purity were obtained (page 6003). Figure 2 displays transmission electron microscope (TEM) images and high-resolution TEM (HRTEM) image of the obtained sample, along with selected area electron diffraction (SAED) pattern (page 6003). The TEM image with low magnification (Figure 2a) shows long nanowires with high yield (page 6003). At higher magnification (Figure 2b), it can be clearly seen that the obtained tellurium crystallites have fine wirelike morphology and the average diameter of these nanowires is ∼25 nm and lengths are up to 10 µm (page 6003). Its SAED pattern (Figure 2c) reveals several diffraction rings, which can be indexed to hexagonal tellurium, in agreement with the XRD result (reads on claim 8).
Lu teaches starch (a polymer), an economical and safe carbohydrate, has been found to be not only an effective reducing agent but also a new morphology-directing agent for the synthesis of tellurium nanowires using commercial H2TeO4 precursor (see entire document, for instance, Abstract).
Wang teaches that a surface coating with polymers such as polyethylene glycol prolongs nanoparticle circulation time (page 85-86).
It would have been obvious to administer to the subject coated metal nanoparticles attached to tellurium nanowires, as taught in Lu and Wang in the methods of Sredni and Chou. One would be motivated to do so with a reasonable expectation of success in combining prior art elements according to known methods to yield predictable results. In the instant case a metalloid nanowires can be used as therapeutic agents for cancer cells.
Claims 2-3 recite that pathogenic cells are cancer cells, bacterial cells or drug resistant bacterial cells. Looking to Applicants’ instant specification, the limitation appears to be a property is tethered to and definitive of the instantly encompassed green-synthesized tellurium nanowires discussed therein (see Spec., pg. [ 2], lines [ 25-35]). As such, consistent with MPEP §2111.01(IV), §2112.01(I) and (II), and §2173.05(g), the Examiner submits that where Applicants’ defining green-synthesized tellurium nanowires is/are disclosed in the prior art, the recited limitation of claim 2-3, will also be considered to be met.
Claim 9 recites that a portion of the tellurium nanowires have a star-shaped structure comprising tellurium nanowires radiating outward from a central point. Looking to Applicants’ instant specification, the limitation appears to be a property that is tethered to and definitive of the instantly encompassed GREEN-TeNWs discussed therein (see Spec., pg. [ 10], lines [ 14-20]). As such, consistent with MPEP §2111.01(IV), §2112.01(I) and (II), and §2173.05(g), the Examiner submits that where Applicants’ defining GREEN-TeNWs disclosed in the prior art, the recited limitation of claim 9, will also be considered to be met.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Sredni (US 20090269289 A1) and Chou et al (Int J Environ Res Public Health; 2016) in view of Lu et al (Langmuir; 2005) and in further in view of Wang et al (The Journal of Supercritical Fluids;2004) as applied to claims 1-10 above and further in view of Peyman (US 20190091350 A1).
The teachings of Sredni, Chou, Lu and Wang have been set forth above.
However, Lu and Wang does do not expressly disclose the nanoparticles have a coating that is about 1 nm thick or nanoparticle size. Peyman remedy this deficiency.
Peyman teaches method comprising the steps of administering a plurality of nanoparticles to target a tumor in a patient, the nanoparticles being coated with an antitumor antibody, cell penetrating peptides (CPPs), and a polymer, and the nanoparticles containing medication and/or gene, and a dye or indicator in the polymer coating, at least some of the nanoparticles attaching to surface antigens of tumor cells so as to form a tumor cell/nanoparticle complex; exciting the nanoparticles using an ultrasound source generating an ultrasonic wave so as to peel off the polymer coating of the nanoparticles, thereby releasing the dye or indicator into the circulation of the patient and the medication and/or gene at the tumor site; and imaging a body region of the patient so as to detect the dye or indicator released into the circulation of the patient (see entire document, for instance, abstract). Peyman discloses the functionalized nanoparticles travel in the body and attach to receptors of desired cells, e.g., tumors (see entire document, for instance, [0030]). Peyman teaches the plaques in Alzheimer's disease, and the drusen in age related macular degeneration, are rendered visible using silica coated nanoparticles <2 nm in diameter ([0030]). The functionalized anti-biomarker-conjugated nanoparticle, ranges in size from 1 nm to 900 nm (see entire document, for instance, [0031]).
Thus, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the nanoparticles with a coating that is about 1 nm thick as described by Peyman with the method of Sredni, Chou, Lu and Wang. One would be motivated to do so with a reasonable expectation of success in combining prior art elements according to known methods to yield predictable results such as releasing a dye or indicator into the circulation of the patient and the medication and/or gene at the tumor site; and imaging a body region of the patient so as to detect the dye or indicator released into the circulation of the patient and enhance their elimination through the kidney for facilitated clearance.
Claims 1-10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable Sredni (US 20090269289 A1) and Chou et al (Int J Environ Res Public Health; 2016) in view of Lu et al (Langmuir; 2005) and in further in view of Wang et al (The Journal of Supercritical Fluids;2004) as applied to claims 1-10 above, and further in view of Pandey et al (J. Mater. Chem. B, 2016) and Petty (US 20150335744 A1).
The teachings of Sredni, Chou, Lu and Wang have been set forth above.
However, Sredni, Chou, Lu and Wang does do not expressly disclose the metal oxide. Pandey et al and Petty remedy this deficiency.
Pandey discloses properties of metal chalcogenides, namely tellurium platinate nanowires (TePt NWrs) (abstract). Pandey discloses a platinum chalcogenide, namely tellurium platinate (Pt3Te4), was found to be exceptionally important for photothermal therapy of cancer cells, mainly due to the semiconducting properties of tellurium.
Petty discloses nanoparticles comprising a metal oxide and a platinum cluster and their use as therapeutic agents ([0004]). Petty teaches the surface to volume ratio of the platinum cluster is greater than 1 nm−1([0008]). In one aspect, the platinum cluster is grafted on the metal oxide ([0008]). Petty discloses methods of using the nanoparticles in producing hydroxyl radicals and in photodynamic therapy, for example, in the treatment of hyperproliferative disease such cancer (abstract).
It would have been obvious to utilize metal oxide as taught in Pandey and Petty in the method of Sredni, Chou, Lu and Wang. One would have been motivated to do so Pandey and Petty teaches that metal oxide and a platinum cluster is particularly useful for imparting treatment of hyperproliferative disease such cancer, wherein Sredni, Chou, Lu and Wang teaches that tellurium can be used to treat pathogenic cells such as cancer cells.
Response to Arguments
Applicant's arguments filed 09/12/2025 have been fully considered but they are not persuasive. Applicants argue, "Sredni's tellurium-containing compounds have an entirely different chemistry and physical form, and as such their properties cannot be applied to the present claimed invention. A person of ordinary skill at the time of the invention would not have expected tellurium compounds that were merely dissolved or pharmaceutically formulated to have comparable interactions with cells, either physically or chemically, to the presently recited tellurium nanostructures. "
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In the instant case, Sredni discloses methods for treating skin conditions such as basal cell carcinoma and/or actinic keratosis are provided, which are affected by administering a pharmaceutically effective amount of a tellurium-containing compound (see entire document, for instance, abstract). Sredni teaches the method comprising administering to the subject a therapeutically effective amount of at least one tellurium-containing compound (see entire document, for instance, claim 41). Sredni teaches polyethylene glycol ([0208] - [0215]) (a synthetic polymer used to coat the tellurium nanowires). Chou discloses tellurium-based nanomaterials have been approved as new and efficient antibacterial agents (see entire document, for instance, abstract). Chou teaches that the fabrics with Te and Te-Au NWs. However, they do not expressly disclose method steps of coated metal nanoparticles attached to tellurium nanowires. Lu and Wang teach steps of coated metal nanoparticles attached to tellurium nanowires, wherein the tellurium nanowires have a wire core comprising tellurium, and wherein the coated metallic nanoparticles have a metallic core and an outer coating comprising a polymer.
Applicant argues, "the teachings of Chou regarding tellurium nanostructures having an antibacterial action are not combinable with the teachings of Sredni because the two research groups used entirely different forms of tellurium, with non-comparable chemistry and physical form. Further, Chou fails to teach or suggest the presently recited selective inhibition of proliferation of pathogenic cells more than normal cells."
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., forms of tellurium) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In the instant case, Sredni discloses methods for treating skin conditions such as basal cell carcinoma and/or actinic keratosis are provided, which are affected by administering a pharmaceutically effective amount of a tellurium-containing compound (see entire document, for instance, abstract). Sredni teaches the method comprising administering to the subject a therapeutically effective amount of at least one tellurium-containing compound (see entire document, for instance, claim 41). Sredni teaches polyethylene glycol ([0208] - [0215]) (a synthetic polymer used to coat the tellurium nanowires). Chou discloses tellurium-based nanomaterials have been approved as new and efficient antibacterial agents (see entire document, for instance, abstract). Chou teaches that the fabrics with Te and Te-Au NWs.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANET JOSEPH whose telephone number is (571)270-1372. The examiner can normally be reached Monday and Thursday 0730-1730 Eastern.
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/JANET JOSEPH/Patent Examiner, Art Unit 1611
/TREVOR LOVE/Primary Examiner, Art Unit 1611