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 .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Withdrawn Rejections
The rejection of the claims under 112a new matter is withdrawn in response to the amendments.
The rejection of the claims under 112a enablement is withdrawn in response to the Remarks 8/4/2026. Applicant’s argument that “[t]he empirically-derived correction factors and equations are the specific analytical tools enabling the enhanced Aβ recovery and accurate determination of the 42/40 ratio” (page 10 para. 2 of Remarks 8/4/2026) is persuasive.
The rejection of claim 30 under 112b is withdrawn in response to the amendments. Changing “the dose” to “a dose” clarifies the lack of antecedent basis of claim 30.
Priority
Acknowledgment is made of the present application as a proper National Stage (371) entry of PCT Application No. PCT/US2020/032010, filed 05/08/2020, which claims benefit under 35 U.S.C. 119(e) to provisional application No. 62/846,565, filed 05/10/2019.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Status of the Claims
Claims 1-2, 4-5, 10, 12-13, 30-31, 33, 41-42, 44, 46, 48-49 and 51-52 are pending; claims 1, 10, 12 and 30-31 are amended, claims 3, 6, 8-9, 11, 14-29, 32, 34-40, 43, 45, 47 and 50 are canceled; no claims are withdrawn. Claims 1-2, 4-5, 10, 12-13, 30-31, 33, 41-42, 44, 46, 48-49 and 51-52 are examined below.
New Interpretation
Claim Interpretation
The claims recite “dose (D) of Aβ42” and “dose (D) of Aβ40”.
The specification paragraph 71 discloses that “"Dose" or "uncorrected dose," as used herein, refers to the calculated concentration of Aβ42 and/or Aβ40 within a body fluid sample”. Therefore, the recited “dose (D) of Aβ42” and “dose (D) of Aβ40” are hereby interpreted as the calculated concentration of Aβ42 and Aβ40.
Maintained Rejections
Claim Rejections - 35 USC § 101
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 1-2, 4-5, 10, 12-13, 30-31, 33, 41-42, 44, 46, 48-49 and 51-52 are rejected under 35 U.S.C. 101 because the claimed invention is directed to at least one judicial exception, without significantly more.
The U.S. Patent and Trademark Office recently revised the MPEP with regard to § 101 (see the MPEP at 2106). Regarding the MPEP at 2106, in determining what concept the claim is “directed to,” we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim contains an “‘inventive concept’ sufficient to ‘transform’” the claimed judicial exception into a patent-eligible application of the judicial exception. Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 82). In so doing, we thus consider whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
See MPEP 2106.
ELIGIBILITY STEP 2A: WHETHER A CLAIM IS DIRECTED TO A JUDICIAL EXCEPTION
Step 2A, Prong 1
Prong One asks does the claim recite an abstract idea, law of nature, or natural phenomenon? In Prong One examiners evaluate whether the claim recites a judicial exception, i.e. whether a law of nature, natural phenomenon, or abstract idea is set forth or described in the claim. While the terms "set forth" and "described" are thus both equated with "recite", their different language is intended to indicate that there are two ways in which an exception can be recited in a claim. For instance, the claims in Diehr, 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical equation in the repetitively calculating step, and the claims in Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012), clearly stated laws of nature in the wherein clause, such that the claims "set forth" an identifiable judicial exception. Alternatively, the claims in Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described the concept of intermediated settlement without ever explicitly using the words "intermediated" or "settlement." See MPEP 2106.04 (II)(A)(1).
Claim 1 recites “…simultaneously assaying the disassociated Aβ42 and Aβ40 body fluid sample by performing an immunoassay to detect a first detectable signal for calculating a dose (D) of Aβ42 and a second detectable signal for calculating a dose (D) of Aβ40, thereby determining the concentrations of Aβ42 and Aβ40”. The limitation of using the “signal for calculating a dose” is an abstract idea, i.e. a judicial exception. Note that “dose” is interpreted as the x-axis component (i.e. concentration of Aβ42 or Aβ40) of the calibration curve/dose response curve of Aβ42 or the calibration curve/dose response curve of Aβ40 (see claim interpretation section above). Therefore, the limitation above suggests that the determining of the concentrations of Aβ42 and Aβ40 comprises simply comparing the signal measured to the corresponding concentration of Aβ42 and Aβ40 from the calibration curve. Therefore, these steps are considered to be directed to an abstract idea, i.e. steps that can be performed solely by the human mind or using a pen and paper.
Claim 10 recites “wherein the concentration of Aβ42 in the dissociated Aβ42 and Aβ40 body fluid is determined from the dose (D) according to the relationship: [Aβ42 (pg/ml)] = (C1D)C2; and the concentration of Aβ40 in the dissociated Aβ42 and Aβ40 body fluid is determined from the dose (D) according to the relationship: [Aβ40 (pg/ml)] = (C3) (D) + D, wherein C1, C2, and C3 are correction factors, wherein C1 is approximately 2.4271, C2 is approximately 0.9196, and C3 is approximately 0.35”. This limitation is drawn to a mathematical calculation in order to determine the concentration of Aβ, i.e., the abstract idea. See MPEP §2106.04(a)(2).
Claim 30 recites “determining the dose (D) of Aβ42 and the dose (D) of Aβ40, thereby determining the amount of Aβ42 and Aβ40 in the body fluid sample”. However, “determining the dose” reads on an abstract idea as above. Note that the dose is interpreted to be drawn to the calibration curve, i.e. a dose response curve (see claim interpretation above). Therefore, “determining the dose” from a calibration curve can be performed solely within the human mind. For example, by simply comparing numerical values.
Further, claim 31 recites “determining the dose (D) of Aβ42 from at least the first detectable signal; determining the dose (D) of Aβ40 from at least the second detectable signal; and correcting the doses (D) of Aβ42 and Aβ40 to determine the concentrations of Aβ42 and Aβ40 in the body fluid; or (b)… determining the dose (D) of Aβ42 from at least the first detectable signal and the third detectable signal; determining the dose (D) of Aβ40 from at least the second detectable signal and the third detectable signal; and correcting the doses (D) of Aβ42 and Aβ40 to determine the concentrations of Aβ42 and Aβ40 in the body fluid”. The limitation “correcting” is drawn to either a mathematical calculation or a mental step, which are abstract ideas, i.e., a judicial exception. Claim 31 also recites “determining the dose” as in claim 30, which is reasonably interpreted as drawn to a judicial exception, an abstract idea.
Furthermore, claim 48 recites “[a] method of detecting, monitoring the progression of, assessing the efficacy of a treatment for, or assessing risk for development of a neurodegenerative disorder in a subject, comprising the method of claim 46”. Claim 48 is directed to a natural correlation, i.e. a judicial exception. Claim 48 relies on the natural occurring correlation between the amount of Aβ42 and Aβ40 in the body fluid and neurodegenerative disorder. The correlation between the amount of Aβ42 and Aβ40 and disease is a judicial exception as it exists in principle apart from any human action; the correlation itself therefore cannot form the basis for eligibility.
Claim 49 merely limits the disease used in the natural correlation. Therefore claim 49 is also directed to at least one judicial exception.
Step 2A, Prong 2
This judicial exception(s) (listed above) are not integrated into a practical application (none of the additionally recited elements/steps apply on, rely on or use the judicial exception such to amount to a practical application thereof).
Claim 1 recites the additional elements of obtaining a body fluid sample, dissociating at least one of Aβ42 and Aβ40 within the body fluid sample, and simultaneously assaying the dissociated Aβ42 and Aβ40 body fluid sample by performing an immunoassay. However, all these limitations are considered insignificant presolution activity because it amounts to steps/elements performed as part of the assay to collect the data. The step of disassociating fails to further apply, rely on or use the judicial exception in a way that amounts to a practical application of the judicial exception(s).
Claims 2, 4 and 52 merely limit the buffer or dissociation step. Therefore, these claims are also drawn to insignificant data gathering steps, i.e. insignificant presolution activity.
Claims 5 and 13 limit the sample used for the data gathering. Therefore, these elements are also drawn to insignificant presolution activity.
Claim 12 limits the assay step used for data gathering. Therefore, these elements are also drawn to insignificant presolution activity.
Claim 30 requires “incubating a body fluid sample from a subject in a buffer solution comprising a protein-compatible surfactant for at least 30 minutes to produce free peptides in the body fluid sample; and performing a single multiplex immunoassay on the body fluid sample”; and claim 31 recites the additional limitation of “wherein the step of performing an immunoassay further comprises: (a) measuring a first detectable signal from Aβ42 immunocomplexes; measuring a second detectable signal from Aβ40 immunocomplexes;… or (b) measuring a first detectable signal from Aβ42 immunocomplexes; measuring a second detectable signal from Aβ40 immunocomplexes; measuring a third detectable signal from product molecules”. These additional limitations are all also insignificant extra-solution activity that do not integrate the judicial exception into a practical application because none of these recited steps/elements apply on, rely on or use the judicial exception in way that amounts to a practical application.
Claims 33, 41-42, 44, 46 and 51 are further drawn to data gathering steps, i.e. insignificant presolution activity in order to make the determination or correction of the dose (claims 30-31 abstract ideas) and/or in order to correlate the amount of Aβ42 and Aβ40 in the body fluid sample to the neurodegenerative disorder (claims 48-49 natural correlation, i.e. a natural law). Therefore, these additional elements fail to integrate the judicial exception(s) into a practical application.
ELIGIBILITY STEP 2B: WHETHER THE ADDITIONAL ELEMENTS CONTRIBUTE AN "INVENTIVE CONCEPT"
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the sample preparation method of claims 1 and 30, including the buffer solution, body fluid, and immunoassay, , are all well understood, routine and conventional in the art and does not amount to significantly more than the judicial exception. The steps of preparing and assaying Aβ42 and Aβ40 are recited at a high level of generality .
Furthermore, dissociating a body fluid sample using a buffer solution comprising a buffer; and a protein-compatible surfactant, wherein the body fluid is incubated in the buffer solution for at least 30 minutes, thereby producing a dissociated body fluid sample is well-understood routine and conventional in the art.
For example, Sarasa (EP 2511296 A1)-Cite No. B1 of IDS, now referred as S1, teaches the sample preparation method of claim 1, including the buffer solution, body fluid, and immunoassay as well as measuring and determining the concentration of Aβ from a body fluid sample (Abstract, page 21, line 1; paragraphs 64, 138, 171, and 177, Example 4, and claim 11). S1 teaches disassociating a body fluid sample from endogenous proteins by incubating the body fluid sample in a buffer solution comprising: a buffer ; and a protein-compatible surfactant (“50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Triton X-100” page 21, line 1; “Antibody Diluent: 50mM tris, 0.05% BSA, 0.5M NaCl, 0.05% Tween20, pH 8.0” paragraph 171), wherein the body fluid sample is incubated in the buffer solution for at least 30 minutes (“incubated overnight at 4⁰C (or for 2h at 37°C)” paragraph 177), thereby producing a dissociated body fluid sample (“[t]he contacting step is carried out under conditions adequate for achieving partial or, preferably, full dissociation of the amyloid beta peptide from the protein and lipids present in the biological sample” paragraph 138).
Furthermore, Sarasa (WO 2011070174)-Cite No. N of PTO 892 10/09/2024-now referred as S2, teaches calculating the ratio of Aβ42 to Aβ40 using an immunoassay (pages 34-35, lines 29-31 and 1-14; Table 8, page 58, line 12).
The specification admits that protein-compatible surfactants are known in the art (“[p]rotein-compatible surfactants known in the art include, but are not limited to, polysorbate 20 (i.e., Tween-20) and Triton X-100” paragraph 52).
Also, Navarrete Santos and Boehm (WO 2008/012101 Al) Cite No. N of PTO 892 2/6/2025-(hereinafter Navarrete) teach “a method for the detection of marker of the Alzheimer's disease, namely the amyloid-β oligomers in human CSF, using a combination of steps including demasking the epitopes responsible for antibody binding on the Aβ peptide oligomers” (Abstract). Navarrete further teaches that “it has been found to be crucial to remove any proteins being attached to the amyloid-β peptides oligomers from the peptides before contacting them with antibodies. The removal of proteins attached to the Aβ is called "demasking"” (page 5 last paragraph). Navarrete further teaches “Preferred demasking solutions:… 10-50, pref. 25 mM Tris-HCI pH 80.4-0.6, pref. 0.5 wt.-% Triton X-100” (page 7 paragraph 2). Navarrete further teaches that “[t]he buffer solution containing the detergents and the body fluid is incubated for about 15 min to 3 h, preferably 30-90 min at a temperature of about 10-40°C” (page 7 last paragraph). Therefore, Navarrete teaches dissociating a body fluid sample using a buffer solution comprising a buffer; and a protein-compatible surfactant, wherein the body fluid is incubated in the buffer solution for at least 30 minutes, thereby producing a dissociated body fluid sample.
There is also evidence that performing a multiplex assay for Aβ42 and Aβ40 on a dissociated body fluid sample is well-understood, routine and conventional.
For example, Hansson et al. Neurobiology of Aging 31 (2010) 357–367 doi:10.1016/j.neurobiolaging.2008.03.027-Cite No. U of PTO 892 2/6/2026 (“Hansson”) “analyzed plasma samples using a new multiplex immunoassay for simultaneous analysis of Aβ1–40, Aβn–40, Aβ1–42, and Aβn–42” (Abstract). Hansson teaches that “[a]ll plasma samples were diluted 1/3 with a buffer containing detergent before analysis” (page 359 col. 2 para. 2).
Also, Kleinschmidt et al. (US 20110091910 A1)-Cite No. A1 of IDS 11/9/2021 (“Kleinschmidt”) teaches that “Multiplex Assay Systems are available from several manufacturers and are well known and broadly used in the field. A suitable example for use in the methods of the present invention is the INNO-BIA plasma Aβ forms assay (Innogenetics). This assay is a well standardized multiparameter bead-based immunoassay for the simultaneous quantification of human β-amyloid forms Aβ(1-42) and Aβ(1-40) or Aβ(X-42) and Aβ(X-40) in plasma using xMAP.RTM. technology (xMAβ is a registered trademark of Luminex Corp.)” para. 183).
Also, the use of a dose (D) response curve to determine the concentration of Aβ42 and Aβ40 is well-understood, routine and conventional in the art.
For example, Song et al. Alzheimer's Research & Therapy (2016) 8:58 DOI 10.1186/s13195-016-0225-7-Cite No. B7 of IDS 2/7/2023 (“Song”) teaches that “the Aβ1–42 concentrations in each sample were quantified using calibration curves generated with Quanterix and Fujirebio Aβ1–42 standard peptides” (page 8 col. 2 para. 2).
Also, Hansson teaches that “[s]ynthetic Aβ peptides, purified by reverse-phase high performance liquid chromatography, were obtained from Bachem (Heidelberg, Germany) and used as calibrators. The standard curve was constructed by plotting the median fluorescence values for each of the standards against its corresponding concentration using the sigmoidal curve fitting method, and the mean MFI values for the duplicate plasma samples were used to determine the concentration of the Aβ isoforms” (page 359 col. 2 para. 3 and page 360 col. 1 para. 1).
Also, using an assay disc appears to be well-understood, routine and conventional in the art.
For example, Janelidze et al., Scientific Reports, May 31, 2016, 6(1):26801, 1-11-Cite No. B4 on IDS teach immobilizing the labeled immunocomplexes onto an assay disc in the presence of substrate molecules, wherein the substrate molecules react with the labeled Aβ42 immunocomplexes or labeled Aβ40 immunocomplexes to produce product molecules, and wherein the product molecules emit a third detectable signal (Abstract, page 3, paragraphs 1-2).
See also, Rissin et. al. nature biotechnology Volume 28, Number 6. Published online 23 May, 2010-Cite No. U of PTO 892 10/9/2024. Rissin et. al. teach wherein the assay disc comprises wells; immobilizing labeled immunocomplexes onto an assay disc comprises immobilizing the labeled immunocomplexes or bare capture agents within the wells; and each well is configured to contain no more than one labeled immunocomplex or one bare capture agent therein, wherein immobilizing labeled immunocomplexes onto an assay disc further comprises enclosing the labeled immunocomplexes in the presence of the substrate molecules, within the wells, under an oil layer (page 596, column 1, paragraph 1 “confinement”).
Finally, a digital ELISA seems to be well-understood, routine and conventional in the art.
For example, Song et al. Alzheimer's Research & Therapy (2016) 8:58 DOI 10.1186/s13195-016-0225-7-Cite No. B7 of IDS 2/7/2023 (“Song”) teaches “A digital enzyme-linked immunosorbent assay for ultrasensitive measurement of amyloid-β 1–42 peptide in human plasma with utility for studies of Alzheimer’s disease therapeutics” (Title).
Also, Janelidze et. al. teach “an ultrasensitive digital ELISA to measure plasma Aβ 42 and Aβ 40” (page 8, paragraph 1 of Janelidze et al.).
Looking to the claims as a whole, none of the steps considered individually or in combination include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed steps are routine, conventional and must necessarily be performed in order to prepare a body fluid sample for detection of at least one of β-amyloid 42 ("Aβ42") and β-amyloid 40 ("Aβ40"), or for determining the concentration of Aβ42 to Aβ40 in a body fluid. Therefore, claims 1-2, 4-5, 10, 12-13, 30-31, 33, 41-42, 44, 46, 48-49 and 51-52 are directed to patent ineligible subject matter.
New Rejections
In further consideration of the art and Applicant’s amendments and arguments, new prior art rejections are made. The “dose (D) of Aβ42” and “dose (D) of Aβ40” had been interpreted too narrowly and are now interpreted as the calculated concentration of Aβ42 and Aβ40 (see claim interpretation section above).
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.
Claim(s) 1-2, 4-5, 12-13 and 52 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarasa (US 2012/0264642 Al) Cite No. A3 of IDS 11/9/2021 (“Sarasa”) in view of Sarasa (EP 2511296 A1)-Cite No. B1 of IDS 2/7/2023, now referred as S1.
Regarding claims 1 and 52, Sarasa teaches a method for preparing a body fluid sample for detection of at least one of β-amyloid 42 ("Aβ42") and β-amyloid 40 ("Aβ40"), comprising: obtaining a body fluid sample from a subject (“In a first step, the method of the invention comprises the determination of at least one parameter selected from the group of (a) the level of one or more free amyloid beta peptides in a biological sample of said subject” paras. 53-54, “The term "biological sample", as understood in the present invention, includes (1) biological fluids such as whole blood, serum, plasma,…”para. 61, “Blood is collected from a subject” para. 226); disassociating at least one of Aβ42 and Aβ40 within the body fluid sample from endogenous proteins (“the dilution of the plasma results in a change in the ionic strength and in the molecular interactions within the sample leading to the release of Aβ 1-40 and Aβ 1-42 bound to plasma proteins and other components” para. 37) by incubating the body fluid sample in a buffer solution comprising: a buffer; and a protein-compatible surfactant, thereby producing a dissociated Aβ42 and Aβ40 body fluid sample (“contacting said sample with a protein solubilising agent under conditions adequate to promote dissociation of the amyloid beta peptide or peptides from the components present in the biological sample” paras. 15-16, “Preferably, the protein solubilizing agent is found in solution in a buffer” para. 68, “Proteins solubilising agents suitable for use in the present invention include, without limitation, detergents” para. 69, “Examples of non-ionic or neutral detergents include, without limitation, detergents of the Tween series… detergents … such as Triton® X-100” para. 71, “the sample is diluted using a buffer comprising the protein solubilising agent” para. 78, “50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Tween-20…50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Triton X-100” paras. 82 and 88, “[t]he contacting step is carried out under conditions adequate for achieving partial or, preferably, full dissociation of the amyloid beta peptide from the protein and lipids present in the biological sample” para. 108). Sarasa further teaches simultaneously assaying the disassociated Aβ42 and Aβ40 body fluid sample by performing an immunoassay to detect a first detectable signal for calculating a dose (D) of Aβ42 and a second detectable signal for calculating a dose (D) of Aβ40, thereby determining the concentrations of Aβ42 and Aβ40 (“In a preferred embodiment, the determination of the amount of amyloid beta peptide is carried out by ELISA” para. 152, “In order to detect or determine simultaneously Aβ42 and Aβ40, the capture antibody can be an antibody which recognises the N-terminal region common to Aβ42 and Aβ40 and the detection antibody can be a combination of at least two antibodies, wherein the first antibody recognises specifically the C-terminal region of Aβ42 without giving any crossreaction with Aβ40 and the second antibody recognises specifically the C-terminal region of Aβ40 without giving any cross-reaction with Aβ42” para. 164, “As mentioned above, the detection antibody may be directly coupled to a detectable tag or to an substrate-modifying enzyme” para. 167).
Sarasa fails to teach wherein the body fluid sample is incubated in the buffer solution for at least 30 minutes, wherein the body fluid sample is incubated in the buffer solution for about 30 minutes to about 4 hours.
S1 teaches a method for preparing a body fluid sample for detection of at least one of β-amyloid 42 ("Aβ42") and β-amyloid 40 ("Aβ40"), comprising: obtaining a body fluid sample from a subject; disassociating at least one of Aβ42 and Aβ40 within the body fluid sample from endogenous proteins by incubating the body fluid sample in a buffer solution comprising: a buffer; and a protein-compatible surfactant, wherein the body fluid sample is incubated in the buffer solution for at least 30 minutes, wherein the body fluid sample is incubated in the buffer solution for about 30 minutes to about 4 hours, thereby producing a dissociated Aβ42 and Aβ40 body fluid sample (“removing from the patient the sample to be analysed” para. 59, “"sample", as understood in the present invention, includes any one of tissue culture, plasma, serum, saliva, semen, sputum, cerebral spinal fluid (CSF)” para. 64, “it is usually adequate to determine the aggregated level of free amyloid beta peptides which includes the originally free amyloid beta peptides as well as the level of amyloid beta peptides which have been released from the macromolecular components after the treatment with the protein solubilising agent” para. 118, “Proteins solubilising agents suitable for use in the present invention include, without limitation, detergents” para. 122, “Examples of non-ionic or neutral detergents include, without limitation, detergents of the Tween series… detergents … such as Triton® X-100” para. 124, “the sample is diluted using a buffer comprising the protein solubilising agent” para. 131, “50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Tween-20…50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Triton X-100” para. 134; “[t]he contacting step is carried out under conditions adequate for achieving partial or, preferably, full dissociation of the amyloid beta peptide from the protein and lipids present in the biological sample” para. 138, “Blocking Buffer: 50mM tris, 0.2% Tween20, 0.5% BSA, pH 8.0… Standard/Sample Diluent: synthetic blocking reagent 1: 100 in PBST” para. 171, “incubated…for 2h at 37°C)” para. 177, “Aβ17, Aβ40 and Aβ42 levels were determined using the ELISA sandwich assay described in Example 1” para. 185, and claim 11). S1 teaches the specific limitation of incubating the sample in the buffer solution for 2 hours in an example (paragraph 177), drawn to Aβ17. But S1 also discloses in paragraph 185 that “Aβ40 and Aβ42 levels were determined using the ELISA sandwich assay described in Example 1”, which reads on to the same ELISA method as described for Aβ17 that is actually described at Example 2. It is important to note that Example 1 of S1 is not drawn to an ELISA method for measuring Aβ40 and Aβ42. It appears that paragraph 185 mistakenly referred to Example 1 and meant to refer to the ELISA method of Example 2. In this case, it would have been obvious to the common artisan to apply this protocol towards Aβ42 or Aβ40, given that S1 discloses that “the conditions can be adequately determined by one of ordinary skills in the art” (paragraph 138), and S1 also teaches measuring Aβ42 and Aβ40 in claim 11. Furthermore, S1 explicitly discloses that the Aβ protein is the “most suitable candidate as AD biomarker” (paragraph 10) so the artisan would have been motivated to use the disclosed protocol for measurement of Aβ42 and Aβ40.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Sarasa to rely on the 2 hours sample incubation with the buffer solution taught by S1 because it would have been a simple matter of applying a known technique to a known method. In this case, both Sarasa and S1 teach a method for preparing a body fluid sample for detection of at least one of Aβ42 and Aβ40, comprising: obtaining a body fluid sample from a subject; disassociating at least one of Aβ42 and Aβ40 within the body fluid sample from endogenous proteins by incubating the body fluid sample in a buffer solution comprising: a buffer; and a protein-compatible surfactant. S1 simply applies the art-recognized technique of 2 hours of sample incubation with the buffer solution. Therefore, it would have been obvious to apply the technique of S1 to the base method taught by both Sarasa and S1. A person having ordinary skill in the art would have had a reasonable expectation of success because Sarasa contemplates the optimization of the incubation step (“[t]he contacting step is carried out under conditions adequate for achieving partial or, preferably, full dissociation of the amyloid beta peptide from the protein and lipids present in the biological sample” para. 108 of Sarasa).
Regarding claim 2, Sarasa in view of S1 teach the method of claim 1 as discussed above.
Sarasa in view of S1 further teach wherein the buffer solution comprises between 0.005 vol.-% and 5.0.-% of the protein-compatible surfactant (“Tween 20 is used at a concentration of 0.5%” para. 75, paras. 82 and 88 of Sarasa).
Regarding claim 4, Sarasa in view of S1 teach the method of claim 2 as discussed above.
Sarasa in view of S1 further teach wherein the protein-compatible surfactant comprises polysorbate 20, Octylphenol Decaethylene Glycol Ether (paras. 75, 82 and 88 of Sarasa).
Regarding claim 5, Sarasa in view of S1 teach the method of claim 4 as discussed above.
Sarasa in view of S1 further teach wherein the body fluid is selected from the group consisting of blood, plasma, serum, lymphatic fluid, cerebrospinal fluid, synovial fluid, urine, and saliva (“The term "biological sample", as understood in the present invention, includes (1) biological fluids such as whole blood, serum, plasma, urine, lymph, saliva, semen, sputum, tears, mucus, sweat, milk, brain extracts and cerebrospinal fluid” para. 61 of Sarasa).
Regarding claim 12, Sarasa in view of S1 teach the method of claim 1 as discussed above.
Sarasa in view of S1 further teach wherein the immunoassay comprises an ELISA (para. 152 of Sarasa).
Regarding claim 13, Sarasa in view of S1 teach the method of claim 1 as discussed above.
Sarasa in view of S1 further teach wherein the subject has a neurodegenerative disorder, is suspected of having a neurodegenerative disorder, is undergoing treatment for a neurodegenerative disorder, has a risk of developing a neurodegenerative disorder, or is suspected of having a risk of developing a neurodegenerative disorder (“The term "diagnosis" as used herein includes the assessment of a subject's susceptibility to a disease, determination as to whether a subject presently has the disease, and also the prognosis of a subject affected by the disease. As will be understood by persons skilled in the art, such assessment normally may not be correct for 100% of the subjects to be diagnosed, although it preferably is correct. The term, however, requires that a statistically significant part of the subjects can be identified as suffering from the disease or having a predisposition thereto” para. 47, “the diagnosis of the neurodegenerative disease, the detection of a stage prior to a neurodegenerative disease or the distinction of a neurodegenerative disease from a stage prior to a neurodegenerative disease is carried out” para. 122, see Table 1 and 12 of Sarasa).
Claim(s) 30-31, 33, 41-42, 44, 46, 48-49 and 51 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarasa (EP 2511296 A1)-Cite No. B1 of IDS, now referred as S1, in view of Hrusovsky et al. (WO 2019199865 A1) (“Hrusovsky”).
Regarding claim 30, S1 teaches a method for determining the amount of Aβ42 and Aβ40 in a body fluid, comprising: incubating a body fluid sample from a subject in a buffer solution comprising a protein-compatible surfactant for at least 30 minutes to produce free peptides in the body fluid sample (“removing from the patient the sample to be analysed” para. 59, “"sample", as understood in the present invention, includes any one of tissue culture, plasma, serum, saliva, semen, sputum, cerebral spinal fluid (CSF)” para. 64, “it is usually adequate to determine the aggregated level of free amyloid beta peptides which includes the originally free amyloid beta peptides as well as the level of amyloid beta peptides which have been released from the macromolecular components after the treatment with the protein solubilising agent” para. 118, “Proteins solubilising agents suitable for use in the present invention include, without limitation, detergents” para. 122, “Examples of non-ionic or neutral detergents include, without limitation, detergents of the Tween series… detergents … such as Triton® X-100” para. 124, “the sample is diluted using a buffer comprising the protein solubilising agent” para. 131, “50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Tween-20…50 mM Tris-HCI pH 8, 0.5M NaCl; 0.05 %; BSA, 0.05 % Triton X-100” page 20 line 53 and page 21, line 1; “[t]he contacting step is carried out under conditions adequate for achieving partial or, preferably, full dissociation of the amyloid beta peptide from the protein and lipids present in the biological sample” para. 138, “Blocking Buffer: 50mM tris, 0.2% Tween20, 0.5% BSA, pH 8.0… Standard/Sample Diluent: synthetic blocking reagent 1: 100 in PBST” para. 171, “incubated overnight at 4"C (or for 2h at 37°C)” para. 177, “Aβ17, Aβ40 and Aβ42 levels were determined using the ELISA sandwich assay described in Example 1” para. 185, and claim 11). S1 teaches the specific limitation of incubating the sample in the buffer solution for at least 30 minutes in an example (paragraph 177), drawn to Aβ17. But S1 also discloses in paragraph 185 that “Aβ40 and Aβ42 levels were determined using the ELISA sandwich assay described in Example 1”, which reads on to the same ELISA method as described for Aβ17 that is actually described at Example 2. It is important to note that Example 1 of S1 is not drawn to an ELISA method for measuring Aβ40 and Aβ42. It appears that paragraph 185 mistakenly referred to Example 1 and meant to refer to the ELISA method of Example 2. In this case, it would have been obvious to the common artisan to apply this protocol towards Aβ42 or Aβ40, given that S1 discloses that “the conditions can be adequately determined by one of ordinary skills in the art” (paragraph 138), and S1 also teaches measuring Aβ42 and Aβ40 in claim 11. Furthermore, S1 explicitly discloses that the Aβ protein is the “most suitable candidate as AD biomarker” (paragraph 10) so the artisan would have been motivated to use the disclosed protocol for measurement of Aβ42 and Aβ40 (“the diagnosis of…neurodegenerative diseases ”para. 62).
S1 fails to teach performing a single multiplex immunoassay on the body fluid sample; and determining concentrations of free peptide Aβ42 and Aβ40 in the body fluid sample simultaneously from the single multiplex immunoassay comprising determining a dose (D) of Aβ42 and a dose (D) of Aβ40, thereby determining the amount of Aβ42 and Aβ40 in the body fluid sample.
Hrusovsky teaches “digital immunoassays performed on diluted samples obtained from dried blood spots” (Abstract). Hrusovsky suggests performing a single multiplex immunoassay on the body fluid sample (“the test may comprise providing a liquid sample derived from a dried sample of physiological fluid. In certain embodiments, for example, the test may comprise obtaining, via a single multiplex immunoassay… concentrations of at least two analytes in the liquid sample selected from the group consisting of… amyloid beta 40 (A beta 40), amyloid beta
42 (A beta 42)” para. 5); and determining concentrations of free peptide Aβ42 and Aβ40 in the body fluid sample simultaneously from the single multiplex immunoassay comprising determining a dose (D) of Aβ42 and a dose (D) of Aβ40, thereby determining the amount of Aβ42 and Aβ40 in the body fluid sample (“the single-sample test may comprise: obtaining, via digital immunoassay (for example a Simoa Multiplex Neurology 4-Plex "A" (N4PA) Assay run on a Quanterix HD-1 Analyzer… the digital immunoassay may comprise a multiplex digital immunoassay” paras. 105-106, “Prophetic Examples 26-27: Multiplex assay calibration experiments. A series of calibration solutions with and without added non-analyte proteins would be assayed for the following biomarkers: NF-L, GFAP, UCHL1, Tau, A beta 40, A beta 42, S100B, and NSE, in accordance with Table 15 and the results reported in Table 16 would be obtained” para. 405, “A series of multiplex digital assays would be conducted on samples obtained from dried capillary blood spots and AEB's obtained using a Quanterix Simoa HD-1 Analyzer (Quanterix™, Lexington, Massachusetts). Biomarker concentrations would be obtained for the samples using the calibration curves noted and results reported in Table 18 would be attained and compared to Reference Marker concentrations” para. 408). Hrusovsky further suggests that determining the concentrations of Aβ42 and Aβ40 enables the diagnosing of a neurological condition, “a test for a neurological condition (for example a neural injury, defect, disorder, or disease) in a subject” and the “assigning a risk (for example a risk of occurrence or presence) of the neurological condition” (para. 5).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of S1 to rely on the single multiplex immunoassay on the body fluid sample; and determining concentrations of free peptide Aβ42 and Aβ40 in the body fluid sample simultaneously from the single multiplex immunoassay comprising determining a dose (D) of Aβ42 and a dose (D) of Aβ40, thereby determining the amount of Aβ42 and Aβ40 in the body fluid sample taught by Hrusovsky because Hrusovsky suggests this enables the diagnosing of a neurological condition and the assigning a risk of the neurological condition, and S1 is interested in biomarkers of Alzheimer’s disease, i.e. testing for a neurological condition. A person having ordinary skill in the art would have had a reasonable expectation of success because Hrusovsky teaches a commercial Quanterix Simoa HD-1 Analyzer to be used to determine the concentrations of Aβ42 and Aβ40.
Regarding claim 31, S1 in view of Hrusovsky teach the method of claim 30 as discussed above.
S1 in view of Hrusovsky further suggest (a) measuring a first detectable signal from Aβ42 immunocomplexes; measuring a second detectable signal from Aβ40 immunocomplexes; determining the dose (D) of Aβ42 from at least the first detectable signal; determining the dose (D) of Aβ40 from at least the second detectable signal (“The term "ELISA", as used herein, stands for enzyme-linked immunosorbent assay and relates to an assay by which an unknown amount of target substance (the amyloid beta peptide) is affixed to a surface, and then a specific antibody is washed over the surface so that it can bind to the antigen. This antibody is linked to an enzyme, and in the final step a substance is added that the enzyme can convert to some detectable signal” para. 147 of S1, “The signal generated by the tag or by the converted substrate is the proportional to the amount of antigen in the sample” para. 151 of S1); and correcting the doses (D) of Aβ42 and Aβ40 to determine the concentrations of Aβ42 and Aβ40 in the body fluid (“The skilled person will appreciate that when the level of amyloid beta peptide is determined by diluting a biological sample with a buffer containing the protein solubilising reagent, the level of free amyloid beta peptide obtained by immunological determination will have to be corrected in order to take into consideration the dilution factor previously applied to the biological sample” para. 139 of S1, paras. 177 and 185 of S1 see Figure 3 showing the results of the signal measurements and dose determination of S1).
Regarding claim 33, S1 in view of Hrusovsky teach the method of claim 31 as discussed above.
S1 fails to teach further comprising, before measuring a first detectable signal and after incubating the body fluid sample in a buffer solution: incubating free peptide molecules in solution with detector reagent molecules and capture agents, the capture agents comprising Aβ42 capture agents and Aβ40 capture agents, to produce Aβ42 immunocomplexes and Aβ40 immunocomplexes; washing the captured peptides to remove unbound or nonspecifically bound Aβ42 or Aβ40 and unbound or non-specifically bound detector reagent molecules; incubating the immunocomplexes with detectable label molecules, wherein the detectable label molecules bind to detector reagent molecules on the immunocomplexes, to produce labeled Aβ42 immunocomplexes and labeled Aβ40 immunocomplexes; washing the labeled immunocomplexes to remove unbound or non-specifically bound detectable label molecules; immobilizing the labeled immunocomplexes onto an assay disc in the presence of substrate molecules, wherein the substrate molecules react with the labeled Aβ42 immunocomplexes or labeled Aβ40 immunocomplexes to produce product molecules, and wherein the product molecules emit the third detectable signal.
Hrusovsky suggests further comprising, before measuring a first detectable signal and after incubating the body fluid sample in a buffer solution: incubating free peptide molecules in solution with detector reagent molecules and capture agents, the capture agents comprising Aβ42 capture agents and Aβ40 capture agents, to produce Aβ42 immunocomplexes and Aβ40 immunocomplexes (“The multiplex assay in Example 3 was a 2-step digital immunoassay. In the first step, assay specific antibody coated paramagnetic capture beads, sample, and biotinylated detector antibody were combined. These beads were labeled with different dyes…molecules present in the sample were captured by the correspondent antibody coated capture beads and labeled with biotinylated detector antibodies” para. 393, “A series of multiplex digital assays would be conducted on samples obtained from dried capillary blood spots and AEB's obtained using a Quanterix Simoa HD-1 Analyzer (Quanterix™, Lexington, Massachusetts). Biomarker concentrations would be obtained for the samples using the calibration curves noted and results reported in Table 18 would be attained and compared to Reference Marker concentrations” para. 408); washing the captured peptides to remove unbound or nonspecifically bound Aβ42 or Aβ40 and unbound or non-specifically bound detector reagent molecules; incubating the immunocomplexes with detectable label molecules, wherein the detectable label molecules bind to detector reagent molecules on the immunocomplexes, to produce labeled Aβ42 immunocomplexes and labeled Aβ40 immunocomplexes (“After washing, a conjugate of streptavidin-β- galactosidase (SBG) is mixed with the capture beads. SBG binds to the biotinylated detector antibodies, resulting in enzyme labeling of captured targets” para. 393); washing the labeled immunocomplexes to remove unbound or non-specifically bound detectable label molecules; immobilizing the labeled immunocomplexes onto an assay disc in the presence of substrate molecules, wherein the substrate molecules react with the labeled Aβ42 immunocomplexes or labeled Aβ40 immunocomplexes to produce product molecules, and wherein the product molecules emit the third detectable signal (“Following a second wash, the capture beads are resuspended in a resorufin β-D-galactopyranoside (RGP) substrate solution and transferred to the Simoa Disc. Individual capture beads are then sealed within microwells in the array. If target has been captured and labeled, the β-galactosidase hydrolyzes the RGP substrate into a fluorescent product that provides the signal for measurement. A single labeled target molecule results in sufficient fluorescent signal to be detected and counted by the Simoa optical system. The dye signal on each bead is decoded to determine which target it captured. At low target concentration, the percentage of bead-containing wells in the array that have a positive signal is proportional to the amount of target present in the sample. At higher target concentration, when most of the bead-containing wells have one or more labeled target molecules, the total fluorescence signal is proportional to the amount of target present in the sample.” para. 393). Hrusovsky further teaches that “[w]hen running the described reagents for the 4-plex on the HD-1, the above protocol was executed automatically by the instrument” (para. 394). Note that although Hrusovsky teaches the digital immunoassay simoa multiplex protocol in a paragraph directed to other biomarkers, Hrusovsky still suggests the application of this protocol for Aβ42 and Aβ40 because Hrusovsky explicitly teaches the use of this protocol for Aβ42 and Aβ40 in paragraph 408. Therefore, a person having ordinary skill in the art would recognize that the protocol of paragraph 393 is applied to Aβ42 and Aβ40 in paragraph 408.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of S1 to rely on the before measuring a first detectable signal and after incubating the body fluid sample in a buffer solution: incubating free peptide molecules in solution with detector reagent molecules and capture agents, the capture agents comprising Aβ42 capture agents and Aβ40 capture agents, to produce Aβ42 immunocomplexes and Aβ40 immunocomplexes; washing the captured peptides to remove unbound or nonspecifically bound Aβ42 or Aβ40 and unbound or non-specifically bound detector reagent molecules; incubating the immunocomplexes with detectable label molecules, wherein the detectable label molecules bind to detector reagent molecules on the immunocomplexes, to produce labeled Aβ42 immunocomplexes and labeled Aβ40 immunocomplexes; washing the labeled immunocomplexes to remove unbound or non-specifically bound detectable label molecules; immobilizing the labeled immunocomplexes onto an assay disc in the presence of substrate molecules, wherein the substrate molecules react with the labeled Aβ42 immunocomplexes or labeled Aβ40 immunocomplexes to produce product molecules, and wherein the product molecules emit the third detectable signal taught by Hrusovsky because Hrusovsky teaches that this protocol is executed automatically by the HD-1 instrument. A person having ordinary skill in the art would have had a reasonable expectation of success because Hrusovsky teaches that the HD-1 instrument is commercially available from Quanterix.
Regarding claim 41, S1 in view of Hrusovsky teach the method of claim 33 as discussed above.
S1 in view of Hrusovsky further suggest wherein the immunoassay comprises an ELISA (“In a preferred embodiment, the determination or detection of the amyloid beta peptide is carried out by ELISA” para. 145 of S1).
Regarding claim 42, S1 in view of Hrusovsky teach the method of claim 41 as discussed above.
S1 in view of Hrusovsky further suggest wherein the first detectable signal and the second detectable signal are fluorescence signals (“Suitable detectable tags include, without limitation, fluorescent moieties (e.g., fluorescein, rhodamine, phyco- erythrin, coumarin, oxazine, resorufin, cyanine and derivatives thereof): para. 55 of S1).
Regarding claim 44, S1 in view of Hrusovsky teach the method of claim 42 as discussed above.
S1 in view of Hrusovsky further suggest wherein the Aβ42 capture agents or the Aβ40 capture agents comprise paramagnetic beads, wherein the capture agents comprise Aβ42-specific or Aβ40-specific antibodies or antigen-binding fragments attached to the surfaces of the paramagnetic beads (“assay specific antibody coated paramagnetic capture beads” para. 393 of Hrusovsky). The common artisan would have had a reasonable expectation of success based on the cumulative disclosures of these prior art references.
Regarding claim 46, S1 in view of Hrusovsky teach the method of claim 44 as discussed above.
S1 in view of Hrusovsky further suggest wherein: the assay disc comprises wells; immobilizing labeled immunocomplexes onto an assay disc comprises immobilizing the labeled immunocomplexes or bare capture agents within the wells (“transferred to the Simoa Disc. Individual capture beads are then sealed within microwells in the array” para. 393 of Hrusovsky); and each well is configured to contain no more than one labeled immunocomplex or one bare capture agent therein (“molecules/particles of a plurality of molecules/particles may be partitioned across a plurality of reaction vessels such that each reaction vessel contains zero or only one species/molecule/particle” para. 357 of Hrusovsky), wherein immobilizing labeled immunocomplexes onto an assay disc further comprises enclosing the labeled immunocomplexes in the presence of the substrate molecules, within the wells, under an oil layer (“the plurality of reaction vessels may be sealed with a sealing fluid (for example a silicone oil sealing fluid)” para. 359 para. 393, para. 408 of Hrusovsky). The common artisan would have had a reasonable expectation of success based on the cumulative disclosures of these prior art references.
Regarding claim 48, S1 in view of Hrusovsky teach the method of claim 46 as discussed above.
S1 in view of Hrusovsky further suggest a method of detecting, monitoring the progression of, assessing the efficacy of a treatment for, or assessing risk for development of a neurodegenerative disorder in a subject, comprising the method of claim 46 (para. 10 of S1, “the diagnosis of…neurodegenerative diseases ”para. 62 of S1 and claim 8 of S1).
Regarding claim 49, S1 in view of Hrusovsky teach the method of claim 48 as discussed above.
S1 in view of Hrusovsky further suggest wherein the neurodegenerative disorder is selected from the group consisting of dementia, Alzheimer's Disease, and traumatic brain injury (para. 10 of S1, “Alzheimer's disease” para. 62 of S1 and claim 8 of S1).
Regarding claim 51, S1 in view of Hrusovsky teach the method of claim 41 as discussed above.
S1 in view of Hrusovsky further suggest wherein the ELISA is a digital ELISA (“the immunoassay may be a digital assay (for example a digital ELISA)” para. 329 of Hrusovsky). The common artisan would have had a reasonable expectation of success based on the cumulative disclosures of these prior art references.
Response to Arguments
Applicant's arguments filed 86 have been fully considered but they are not persuasive.
Regarding the 101 rejections,
Applicant argues that “The present claims are structurally analogous: they are focused on a process of detecting Aβ42 and Aβ40 biomarkers in a body fluid sample through specific laboratory steps (dissociation, incubation, multiplex immunoassay), not on any natural correlation or mathematical relationship per se…Claim 30 recites a method of determining the amount of Aβ42 and Aβ40 in a body fluid sample comprising incubating a body fluid sample with a protein-compatible surfactant, performing an immunoassay, and determining concentrations of Aβ42 and Aβ40 simultaneously from a single multiplex assay. These steps are a specific, ordered combination of laboratory manipulations that are not abstract ideas and cannot be practically performed in the human mind” (page 17 para. 2 and page 18 para. 2).
However, the process of determining the concentration of Aβ42 and Aβ40 biomarkers in a body fluid sample is based on an abstract idea, namely the mental step of checking the calibration curve to determine the corresponding concentration of the signal detected (see claim interpretation section and 101 rejection above). Furthermore, the process of correlating the concentration of Aβ42 and Aβ40 biomarkers in a body fluid sample to disease is a natural correlation, a law of nature, i.e. another judicial exception. Therefore, Applicant’s arguments are not persuasive.
Applicant further argues that “present claims are directed to an improvement in amyloid beta detection technology, specifically, a multiplex immunoassay method with empirically-derived correction factors that achieves improved clinical sensitivity and specificity over conventional methods…Here, the body fluid sample (a particular article) is transformed into a non-natural dissociated sample enriched in free Aβ42 and Aβ40 peptides (a different state or thing), and this transformed sample is then assayed in a manner that is not routine or conventional…Specifically, the present claims recite a method of preparing, assaying, and analyzing a body fluid sample in a manner that improves sensitivity and accuracy of Aβ42 and Aβ40 detection…The correction factors are not routine or conventional because they were empirically derived through the recited laboratory method and resulted in improved analytical specificity and sensitivity…The correction factors and the specific combination of sample preparation, dissociation, and multiplex immunoassay steps are not conventional techniques that were routinely applied to determine the Aβ42/ Aβ40 ratio in human plasma prior to the invention” (page 19 paras. 2-3 and page 20 paras. 1-2).
However, the additional elements of the claims fail to integrate the judicial exception into a practical application because none use, rely on or apply the judicial exception such to amount to a practical application thereof. The sample preparation and dissociation steps are all data gathering steps, insignificant pre-solution activities that fail to integrate the judicial exception into a practical application. Note that the empirically-derived correction factors that achieves improved clinical sensitivity and specificity is part of the judicial exception. Therefore, this cannot be the basis for eligibility.
Applicant further argues that “the Examiner has not articulated any basis to explain how the specific claimed combination of sample preparation, dissociation, simultaneous multiplex immunoassay, and application of correction factors is well-understood, routine, and conventional for determining the Aβ42/ Aβ40 ratio in human plasma…The cited references do not teach or suggest the specific ordered combination of sample dissociation with protein-compatible surfactant for at least 30 minutes, simultaneous multiplex immunoassay of Aβ42 and Aβ40, and application of the specific empirically-derived correction factors recited in the claims…the Examiner has not taken official notice that the specific claimed combination is well-understood, routine, and conventional…The claims recite a specific combination of: (1) sample preparation involving dissociation of Aβ42 and Aβ40 from endogenous proteins in a buffer with a protein-compatible surfactant for at least 30 minutes; (2) simultaneous assaying of the dissociated peptides in a multiplex format; and (3) application of specific empirically-derived correction factors. This ordered combination is not well-understood, routine, or conventional…the present inventors apply empirically-derived correction factors to address the well-documented recovery and accuracy problems in amyloid beta quantification…Here, there is no evidence that the specific combination of sample preparation steps, i.e., dissociation of Aβ42 and Aβ40 from endogenous proteins using a protein-compatible surfactant, simultaneous multiplex immunoassay, and application of the claimed correction factors was routinely or conventionally used to determine the Aβ42/ Aβ40 ratio in human plasma prior to the invention” (pages 22-24).
However, it is not proper to consider the judicial exception as part of the ordered combination in the conventionality analysis under Step 2B. As set forth in MPEP 2106.05.I, Step 2B is the search for the inventive concept/significantly more and an inventive concept cannot be furnished by the judicial exception itself. Rather, the inventive concept is furnished by the additional elements either individually or in combination. This is further reiterated in the examples of how to conduct the search for the inventive concept in MPEP 2106.05.I.B and 2106.05.II. Therefore, Applicant’s arguments are not persuasive. The additional elements are all well-understood, routine and conventional as evidenced by the cited art (see rejection above).
Applicant further argues that “Claim 10 recites specific correction factor…These specific parameters are not routine or conventional, and their use in combination with the sample preparation and assay steps amounts to significantly more. Claim 31 recites specific immunoassay measurement steps including detecting signals from immunocomplexes, determining doses from those signals, and correcting the doses. These are practical laboratory steps that integrate any alleged exception into a practical application and amount to significantly more. Claims 48-49 are directed to methods of detecting, monitoring, or assessing neurodegenerative disorders, which are practical applications. The Examiner asserts that claim 48 is directed to a "natural correlation" between Aβ42/Aβ40 levels and neurodegenerative disorders. However, these claims incorporate all of the preceding laboratory steps and do not merely recite the natural correlation; they recite a specific, improved method for making that determination
However, as mentioned above, the claims remain rejected because the additional elements fail to amount to significantly more than the judicial exception. Note that the “determining”, “correcting” limitations as well as the natural correlation are judicial exceptions. Therefore, the claims are not patent eligible.
Regarding the 103 rejections,
Applicant had argued (see Remarks 9/23/2025 pages 16-20) that S1 “does not describe or suggest the simultaneous assaying of Aβ42 and Aβ40,… Sarasa-1 further fails to teach or suggest determining the dose of Aβ42 or Aβ40 including because no relationship of the concentration to dose is taught or suggested in Example 2 of Sarasa-1” page 18 paras. 1 and 3).
However, the claimed “dose of Aβ42” and “dose of Aβ40” are now being interpreted as the calculated concentration of Aβ42 and Aβ40 (see new claim interpretation above). Therefore, new grounds of rejection are set forth above over Sarasa (US 2012/0264642 Al) Cite No. A3 of IDS 11/9/2021 (“Sarasa”) in view of Sarasa (EP 2511296 A1)-Cite No. B1 of IDS 2/7/2023 (“S1”).
Applicant had further argued (see Remarks 9/23/2025 pages 16-20) that “Sarasa-2 only provides methods of obtaining the combined concentrations of Aβ42 and Aβ40, which is not the same as determining the dose (D) of Aβ42 and the dose (D) of Aβ40, as described in the present claims” (page 19 para. 5).
However, contrary to Applicants remark, methods of obtaining the combined concentrations of Aβ42 and Aβ40, reasonably provide the recited dose (D) of Aβ42 and the dose (D) of Aβ40. See new claim interpretation above.
Applicant had further argued that “While Sarasa-2 at paragraph [0164] provides additional description of capture antibodies "to detect or determine simultaneously Aβ42 and Aβ40," such antibodies are never described to have separate labels ( or "detectable tags" as referred to in Sarasa-2) to yield separate (a first, and a second) signals, which is required for a multiplex assay” (bridge paragraph pages 19-20).
However, new grounds of rejection are set forth above in view of Hrusovsky et al. (WO 2019199865 A1) (“Hrusovsky”). Hrusovsky clearly teaches a single multiplex assay, specifically the HD-1 analyzer from Quanterix.
Conclusion
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/Fernando Ivich/Examiner, Art Unit 1678
/GREGORY S EMCH/Supervisory Patent Examiner, Art Unit 1678
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