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 .
Claim Objections
Applicant is advised that should claim 30 be found allowable, claim 161 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 103
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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1. Claims 1, 2, 7, 10, 18, 19, 25, 28-30, 33, 38, 156-160, 163, 165, 166 and 172 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 6,211,956 to Nicoli in view of U.S. Patent Application Publication No. 2013/0079599 to Holmes et al. and U.S. Patent Application Publication No. 2017/0248596 to Bouzahzah et al.
Nicoli discloses a method for measuring the concentration of particles in a sample and/or a physical property of particles of a sample using an automated dilution system having a high-resolution particle size analyzer (column 1, lines 7-13 and 39-42)
The method comprises diluting a first portion of a sample using a diluent at a dilution ratio. Adding the diluent to the sample in two or more increments to adjust the dilution would have been obvious and would read on the use of a first and second diluent as claimed.
A portion of the first diluted sample is conveyed to a single particle optical sensor (SPOS) through a flow tube having its input end positioned in the mixing chamber. [column 19 lines 9-14)
The SPOS measures a first property of each cell of a subset of particles of the first portion of the sample having passed through the aperture by giving rise to an output signal pulse, the magnitude of which depends on the size (and, to a lesser extent, the composition) of the particle as well as the detection principle employed. (column 8, lines 23-28). At the same time, the particle concentration remaining in the fluidics system can be determined by monitoring the particle count rate (in the entire measurable size range or, alternatively, over a portion thereof, as desired) and converting this information to an equivalent concentration using the known diluent flow rate FD1. (column 41, lines 22-28).
According to an alternative embodiment taught by Nicoli, a second portion of the sample can be further diluted using the first diluent based on the achieved particle count rate, or concentration, the DF value could be decreased by an appropriate factor (through an increase in FS, typically) to reach the desired final concentration. (column 29, lines 10-14)
By extension, sensing techniques based on light scattering and/or diffraction,... can be used to adjust the flow rate(s) of one or both of the starting concentrated fluid sample and diluent fluid entering a mixing chamber. (column 4, lines 5-11)
The "second" dilution factor DF2 is given by the ratio of the total flow rate, FD2+FD3, to the prediluted sample flow rate FD3. (column 38, lines 21-23)
The second portion is directed to the aperture at a second flow rate so that the sample suspension which exits mixing chamber MC2 and passes through SPOS sensor 16, at flow rate F2=FD2+FD3, will be further diluted relative to the prediluted sample suspension residing in mixing chamber MC1. (column 38, lines17-21)
Determining a concentration of particles of the sample and/or one or more physical properties of the particles of the sample based on the second measured property of each cell of the subset of particles from the second portion of the sample yields a value for the particle count rate. Together with the known value of the flow rate F2, this yields a corresponding particle concentration either for the entire measurable particle size range or over a selected segment thereof. (column 28, lines 50-57).
Nicoli fails to disclose that the sample is a biological sample and said particles are cells, and the use of a second diluent flowed with the first sample.
Holmes et al. teaches using a combination of diluents to measure properties of cells derived from a biological sample.
Holmes et al. teaches that: The processing step may assesses the presence and/or concentration of an analyte in the sample in methods above or elsewhere herein [0036]; Non-limiting examples of analytes include... cells [1559]; In some cases, the sample includes blood [0076]; A reagent unit may be configured to contain and/or confine a reagent that may be used in an assay [1051]; For example, reagents may include a sample diluent [1051]-[1052]; Any number of reagent units may be provided. For example there may be more than and/or equal to about... 5 reagent units [1054]; The device and/or module may permit the use of one or more diluents in accordance with an embodiment of the invention. Diluent may be contained in one or more reagent unit [1080]; [T]he device may employ multiple types of diluents [1082]; In another example, diluents and/or sample may be combined in a reagent unit or other types of vessels described elsewhere herein [1086]; The chambers may be arranged such that a defined amount of mixing occurs among the various chambers [0332].
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Nicoli with the teaching of Holmes et al. for the purpose of using a combination of diluents that can be used to dilute a sample to accurately quantify the number of cells in a sample.
Holmes et al. teaches including microparticles in the samples for purposes of binding particles/cells of interested to the microparticles for analysis.
However, Nicoli in view of Holmes et al. does not teach adding microparticles for calibration purposes.
Bouzahzah et al. control cells, control beads and fluorescent beads for flow cytometer calibration purposes. [0121]
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. to include control beads in the forms of microparticles for purposes of calibrating the cell counting performance as taught by Bouzahzah et al.
I.) Regarding applicant’s claim 1, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders all the elements of claim 1 obvious.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious.
II.) Regarding applicant’s claim 2, as noted above Nicoli in view of Holmes et al. renders claim 1 obvious from which claim 2 depends.
Claim 2 recites that the cells comprise red blood cells, white blood cells, and/or platelets.
As noted above, Holmes et al. teaches that the samples can include blood. At [1616] Holmes et al. teaches that “the characteristically shaped red cells can also be identified in these images.”
It would have been obvious to one of ordinary skill in the art to measure the concentration of at least red blood cells in Nicoli in view of Holmes et al. and Bouzahzah et al. for purposes of monitoring a subject’s red blood cell count.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 2 obvious.
III.) Regarding applicant’s claim 7, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 7 depends.
Claim 7 recites that the first and/or second measured property of each cell comprises impedance, resistance, and/or voltage.
Nicoli teaches that voltage can be used to identify particles. (column 16, lines 9-13)
It would have been obvious to detect particles in Nicoli in view of Holmes et al using voltage as taught by Nicoli.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 7 obvious.
IV.) Regarding applicant’s claim 10, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 10 depends.
Claim 10 recites determining the one or more physical properties of the cells of the biological sample and wherein the one or more physical properties of the cells comprises a size, volume, a diameter, and/or a surface area.
Nicoli teaches analysis of particle “size” as noted in the title and throughout.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 10 obvious.
V.) Regarding applicant’s claim 18, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 18 depends.
Claim 18 recites waiting a first predetermined period of time after diluting the first portion and prior to flowing the first portion to the aperture at the first flow rate.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach waiting a first predetermined period of time after diluting the first portion and prior to flowing the first portion to the aperture at the first flow rate.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to wait a first predetermined period of time after diluting the first portion and prior to flowing the first portion to the aperture at the first flow rate, for purposes of allowing the diluted mixture to become uniform in particle distribution.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 18 obvious.
VI.) Regarding applicant’s claim 19, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 18 obvious from which claim 19 depends.
Claim 19 recites a first predetermined period of time comprises at least 5 minutes.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach a first predetermined period of time comprises at least 5 minutes.
However, it would have been obvious to one of ordinary skill in the art to conduct routine optimization experimentation to determine a suitable time period to wait for the diluent to mix satisfactorily with a sample, including a time period of at least 5 minutes.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 19 obvious.
VII.) Regarding applicant’s claim 25, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 25 depends.
Claim 25 recites the microparticle sizes are more than 2 standard deviations from a mean of a size of a cell population of interest.
Nicoli et al. as modified by Holmes et al. and Bouzahzah et al. does not teach the microparticle sizes are more than 2 standard deviations from a mean of a size of a cell population of interest.
It would have been obvious to one of ordinary skill in the art to conduct routine optimization experimentation to determine a suitable size range of the microparticles, including a size range of more than 2 standard deviations from a mean of a size of a cell population of interest.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 25 obvious.
VIII.) Regarding applicant’s claim 28, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 28 depends.
Claim 28 recites measuring a physical property of each of the plurality of microparticles of the second portion of the biological sample having passed through the aperture; and, determining the one or more physical properties of the cells of the biological sample based on the measured property of each of the plurality of microparticles having passed through the sensor.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach measuring a physical property of each of the plurality of microparticles of the second portion of the biological sample having passed through the aperture; and, determining the one or more physical properties of the cells of the biological sample based on the measured property of each of the plurality of microparticles having passed through the sensor.
Holmes et al teaches that microparticle beads and be used on which substances including cells can be bound. [0309].
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to measuring a physical property of each of the plurality of microparticles of the second portion of the biological sample having passed through the aperture and determining the one or more physical properties of the cells of the biological sample based on the measured property of each of the plurality of microparticles having passed through the sensor, in view of Holmes et al. teaching having cells bound to the microparticles.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 28 obvious.
IX.) Regarding applicant’s claim 29, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 28 obvious from which claim 29 depends.
Claim 29 recites that the one or more determined physical properties of the cells comprises a volume of cells, a diameter of cells, a surface area of cells, and/or a hemoglobin concentration.
As noted above, Nicoli teaches analysis of particle “size” as noted in the title and throughout.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 29 obvious.
X.) Regarding applicant’s claim 30, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 30 depends.
Claim 30 recites determining one or more environmental properties to which the biological sample is exposed based on one or more measured physical properties of the microparticles having passed through the sensor.
In Nicoli in view of Holmes et al. and Bouzahzah et al. it would have been obvious to determine the flow rates which applicant discloses as an “environmental property” to which the samples have been exposed to.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 30 obvious.
XI.) Regarding applicant’s claim 33, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 33 depends.
Claim 33 recites adjusting the osmolality of a first and/or second diluent to be within 0.1mOsm/kg of the osmolality of the biological sample.
Nicoli in view of Holmes et al. does not teach adjusting the osmolality of a first and/or second diluent to be within 0.1mOsm/kg of the osmolality of the biological sample.
Holmes et al. teaches osmolality analysis. [0008], et seq.
It would have been obvious to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to adjust the osmolality of a first and/or second diluent to a suitable degree using routine optimization experimentation, including using an osmolality within 0.1mOsm/kg of the osmolality of the biological sample.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 33 obvious
XII.) Regarding applicant’s claim 38, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 38 depends.
Claim 38 recites measuring an optical property of the first portion of the diluted sample having passed to the aperture using an optical sensor; and, determining one or more of: a flow rate to the aperture, an osmolality, a dilution ratio of the sample to a first and/or second diluent and/or system delays of the first portion of the diluted sample passing through the aperture based on the optical property.
Nicoli et al. teaches that sensing techniques based on light scattering and/or diffraction….can be used to adjust the flow rate(s) of one or both of the starting concentrated fluid sample and diluent fluid entering the mixing chamber. (column 4, lines 14-18)
It would have been obvious to modify Nicoli in view of Holmes and Bouzahzah et al. to measuring an optical property of the first portion of the diluted sample having passed to the aperture using an optical sensor and determine at least a flow rate to the aperture.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 38 obvious.
XIII.) Regarding applicant’s claim 156, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 156 depends.
Claim 156 recites that the first plurality of microparticles comprise latex beads and/or microvesicles.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach that the first plurality of microparticles comprise latex beads and/or microvesicles.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to use a first plurality of microparticles comprising non-reaction interfering materials such as latex beads and/or microvesicles for calibration purposes.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 156 obvious.
XIV.) Regarding applicant’s claim 157, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 157 depends.
Claim 157 recites that the first plurality of microparticles is characterized by a size distribution pattern.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach that the first plurality of microparticles is characterized by a size distribution pattern.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to provide first plurality of microparticles that are characterized by a size distribution pattern that allows for calibration purposes over a desired size range.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 157 obvious.
XV.) Regarding applicant’s claim 158, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 158 depends.
Claim 158 recites that the first diluent comprises a second plurality of microparticles.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach that the first diluent comprises a second plurality of microparticles.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to the first diluent with a second plurality of microparticles for purposes of calibrating/monitoring particles associated with the first diluent.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 158 obvious.
XVI.) Regarding applicant’s claim 159, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 159 depends.
Claim 159 recites that the second diluent comprises a third plurality of microparticles.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach that the second diluent comprises a third plurality of microparticles.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to provide the second diluent with a third plurality of microparticles for purposes of calibrating/monitoring particles associated with the second diluent.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 159 obvious.
XVII.) Regarding applicant’s claim 160, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 160 depends.
Claim 160 recites calibrating the apparatus using the first plurality of microparticles.
Nicoli in view of Holmes et al. and Bouzahzah et al. the microparticles are used for calibration purposes.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 160 obvious.
XVIII.) Regarding applicant’s claim 163, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 163 depends.
Claim 163 recites adding one or more dyes to the biological sample, the first diluent and/or the second diluent.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach adding one or more dyes to the biological sample, the first diluent and/or the second diluent.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Homes et al. and Bouzahzah et al. to adding one or more dyes to the biological sample, the first diluent and/or the second diluent for purposes of being able to visually monitor the dilution process.
Therefore, Nicoli in view of Holmes and Bouzahzah et al. renders claim 163 obvious.
XIX.) Regarding applicant’s claim 165, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 165 depends.
Claim 165 recites measuring an optical property of the diluted first portion of the biological sample having flowed to the aperture using an optical sensor; and determining one or more of: a flow rate to the aperture, an osmolality, a dilution ratio of the biological sample to the first and/or second diluent and/or system delays of the diluted first portion of the biological sample having flowed through the aperture based on the optical property.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to optically monitor cells/particles and monitor flow rate for purposes of being able to determine the number of cell/particles through the system.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 165 obvious.
XX.) Regarding applicant’s claim 166, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 166 depends.
Claim 166 recites the optical property of the diluted first portion of the biological sample comprises fluorescence and/or an optical density.
As noted above, Bouzahzah et al. teaches that fluorescent beads can be used for calibration.
Further, Holmes et al. teaches fluorescence detection. [1207].
Accordingly, it would have been obvious to monitor Nicoli in view of Holmes et al. and Bouzahzah et al. to detect as an optical property of the diluted first portion of the biological sample fluorescence and/or an optical density.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 166 obvious.
XXI.) Regarding applicant’s claim 172, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 1 obvious from which claim 172 depends.
Claim 172 recites that the first measured property and/or the second measured property of each cell comprises a magnetic field or magnetic resonance change, a sound, an optical property, light scatter and/or light absorption.
As noted above, Nicoli in view of Holmes et al. and Bouzahzah et al. provides for optical cell/particle detection.
Therefore, Nicoli in view of Holmes et al. and Bouzahzah et al. renders claim 72 obvious.
2. Claims 162 and 164 are rejected under 35 USC 103 as being unpatentable over Nicoli in view of Holmes et al. and Bouzahzah et al. as applied to claim 1 and further in view of Wikipedia “Osmotic concentration.”
I.) Regarding applicant’s claim 162, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 1 obvious from which claim 162 depends.
Claim 162 recites measuring an osmolality of the biological sample.
Nicoli in view of Holmes et al. and Bouzahzah et al. does not teach measuring am osmolality of the biological sample.
Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to measure the osmolality of the biological sample a measure the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution as taught by Wikipedia.
Therefore, Nicoli in view of Holmes et al. Bouzahzah et al. and Wikipedia renders claim 162 obvious.
II.) Regarding applicant’s claim 164, as noted above Nicoli in view of Holmes et al. and Bouzahzah et al. render claim 1 obvious from which claim 164 depends.
Claim 164 recites adjusting the second dilution ratio to achieve a desired osmolality of the second portion.
Nicoli in view of Holmes et al. and Bouzahzah et al. does note teach adjusting the second dilution ratio to achieve a desired osmolality of the second portion.
As noted above, Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Holmes et al. and Bouzahzah et al. to adjust the second dilution ratio to achieve a desired osmolality of the second portion for purposes of measuring the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution as taught by Wikipedia.
Therefore, Nicoli in view of Holmes et al. Bouzahzah et al. and Wikipedia renders claim 164 obvious.
3. Claims 49, 62-64, 76 and 167-171 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 6,211,956 to Nicoli in view of U.S. Patent Application Publication No. 2017/0276591 to Krockenberger et al. and Wikipedia “Osmotic concentration.”
Nicoli discloses a method for measuring the concentration of particles in a sample and/or a physical property of particles of a sample using an automated dilution system having a high-resolution particle size analyzer (column 1, lines 7-13 and 39-42) Nicoli teaches that the invention provides a method and apparatus for automatic dilution of a starting concentrated fluid suspension of particles for the purpose of optimizing a measurement of the particle size distribution. (column 1, lines 7-10).
Nicoli teaches that the fluid contents of the mixing chamber are continuously and efficiently mixed, so that ideally the particle concentration, expressed either as the total number of particles, or the number in any given size range, per unit volume of fluid suspension, is always homogeneous throughout the mixing chamber. The "sample fluid" continuously injected into the mixing chamber is the starting concentrated suspension of particles of a given composition and particle size distribution (PSD). (column 5, lines 3-12).
Nicoli teaches that a second fluid is continuously injected into the mixing chamber consists of relatively particle-free diluent, with which one wishes to dilute the starting sample suspension. (column 5, lines 13-16); and that all or part of the fluid/particle mixture exiting the mixing chamber is made to flow, at an appropriate rate, through a suitable sensor, designed to respond to individual particles in the diluted output stream, producing a signal which can be processed to obtain the PSD. (column 5, lines 16-21)
The dilute liquid-particle suspension passes through the flow channel, typically at a flow rate of 1-2 ml/sec, causing the particles to pass momentarily through the view volume. (column 8, lines 20-23)
The passage of each particle gives rise to an output signal pulse, the magnitude of which depends on the size (and, to a lesser extent, the composition) of the particle as well as the detection principle employed (i.e. light extinction, light scattering, or some combination thereof) and the details of the sensor design. (column 8, lines 23-280
Nicoli teaches that in order to further enhance the understanding of this invention, based on automatic dilution of concentrated samples using one or more techniques for particle size analysis, including the SPOS technique for counting and sizing particles. (column 11, line 66 – column 12, line 3)
The approximate particle concentration of the biological sample is determined based on the first and the second flow rates and/or the first measured property of each cell of the subset of particles of the portion of the diluted sample (At the same time, the particle concentration remaining in the fluidics system can be determined by monitoring the particle count rate (in the entire measurable size range or, alternatively, over a portion thereof, as desired) and converting this information to an equivalent concentration using the known diluent flow rate FD1. (Column 41, lines 22-28)
In Nicoli the sample suspension which exits mixing chamber MC2 and passes through a single particle optical sensor (SPOS) at a flow rate F2=FD2+FD3, will be further diluted relative to the prediluted sample suspension residing in mixing chamber MC1. (column 38, lines 17-21).
Then, based on the achieved particle count rate, or concentration, the DF value could be decreased by an appropriate factor (through an increase in FS, typically) to reach the desired final concentration. Column 29, lines 10-14)
By extension, sensing techniques based on light scattering and/or diffraction,... can be used to adjust the flow rate(s) of one or both of the starting concentrated fluid sample and diluent fluid entering a-mixing chamber. (column 4, lines 5-11)
The sample suspension which exits mixing chamber MC2 and passes through SPOS sensor 16, at flow rate F2=FD2+FD3, can be further diluted relative to the prediluted sample suspension residing in mixing chamber MC1. (column 38, lines 17-21).
The output of SPOS sensor 16,... yields a value for the particle count rate. Together with the known value of the flow rate F2, this yields a corresponding particle concentration, either for the entire measurable particle size range or over a selected segment thereof. (column 28, lines 50-57)
Nicoli fails to explicitly disclose said sample is a biological sample and said particles are cells.
Krockenberger et al. teaches a method for identifying, analyzing, and quantifying the cellular components of whole blood by means of an automated hematology analyzer and the detection of the light scattered, absorbed, and fluorescently emitted by each cell. (Abstract)
In one aspect, the method comprises the steps of: (a) providing an automated hematology analyzer capable of measuring light extinction, light scattering, and fluorescence, the automated hematology analyzer being equipped with a laser having a wavelength in the range of from about 400 nm to about 450 nm; (b) providing a diluent for diluting a sample of blood which, in certain cases, contains a sphering agent; (c) providing a sample of whole blood; (d) mixing the diluent and the sample of whole blood; (e) differentiating and counting white blood cells by means of multiple in-flow optical measurements with a high rate of sample introduction; (f) differentiating and counting red blood cells and platelets by means of multiple in-flow optical measurements with a low rate of sample introduction. [0014]
In reference to "measuring cells" Krockenberger et al. refers to enumerating cells by means of optical measurement techniques to determine, e.g., size. [0041]
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Nicoli in view of the teaching of Krockenberger et al for the purpose determining different dilution ratios and flow rates to quantify cells in a biological sample for diagnostics purposes.
Nicoli in view of Krockenberger et al. does not teach measuring an osmolality of the biological sample.
Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. to measure the osmolality of the biological sample for purposes of providing a diluent with a compatible osmolality.
I.) Regarding applicant’s claim 49 as noted above, Nicoli in view of Krockenberger et al. and Wikipedia renders all the elements of claim 49 obvious.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 49 obvious.
II.) Regarding applicant’s claim 62, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 49 obvious from which claim 62 depends.
Claim 62 recites automatically adjusting the first flow rate and/or the second flow rate to achieve and/or maintain the desired cell density of the portion of the diluted sample passing through the aperture of the sensor.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach automatically adjusting the first flow rate and/or the second flow rate to achieve and/or maintain the desired cell density of the portion of the diluted sample passing through the aperture of the sensor.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to adjust the first flow rate and/or the second flow rate to achieve and/or maintain the desired cell density of the portion of the diluted sample passing through the aperture of the sensor so as to avoid not pass cells to quickly for the sensor’s capabilities.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 62 obvious.
III.) Regarding applicant’s claim 63, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 49 obvious from which claim 63 depends.
Claim 63 recites automatically adjusting the first flow rate and/or the second flow rate to achieve a gradient of osmolalities of the portion of the diluted sample passing through the aperture of the sensor.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach automatically adjusting the first flow rate and/or the second flow rate to achieve a gradient of osmolalities of the portion of the diluted sample passing through the aperture of the sensor.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to adjust the first flow rate and/or the second flow rate to achieve a gradient of osmolalities of the portion of the diluted sample passing through the aperture of the sensor so as to avoid not pass cells to quickly for the sensor’s capabilities.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 63 obvious.
IV.) Regarding applicant’s claim 64, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 63 obvious from which claim 64 depends.
Claim 64 recites determining a peak osmolality of the cells of the biological sample based on the measured property of each cell of the subset of cells from the portion of the diluted sample.
Nicoli in view of Krockenberger et al. does not teach determining a peak osmolality of the cells of the biological sample based on the measured property of each cell of the subset of cells from the portion of the diluted sample.
As noted above, Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to modify Nicoli in view of Krockenberger et al. to determine a peak osmolality of the cells of the biological sample based on the measured property of each cell of the subset of cells from the portion of the diluted sample so as to avoid not pass cells to quickly for the sensor’s capabilities.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 64 obvious.
V.) Regarding applicant’s claim 75, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 75 obvious from which claim 76 depends.
Claim 75 recites measuring the osmolality of the biological sample.
Nicoli in view of Krockenberger et al. does not teach measuring the osmolality of the biological sample.
As noted above, Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. to measure the osmolality of the biological sample for purposes of providing a diluent with a compatible osmolality.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 75 obvious.
VI.) Regarding applicant’s claim 76, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 49 obvious from which claim 75 depends.
Claim 76 recites adjusting the osmolality of the first diluent to be within 0.lmOsm/kg of the osmolality of the sample.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach adjusting the osmolality of the first diluent to be within 0.1mOsm/kg of the osmolality of the sample.
As noted above, Wikipedia teaches that osmolarity is a measurement of the number of particles on dissociation of osmotically active material (osmoles of solute particles) per unit volume of solution.
It would have been obvious to one of ordinary skill in the art to conduct routine optimization experimentation to determine a suitable osmolality of the first diluent so as to be within a desired osmolality of the sample, including within 0.1mOsm/kg of the osmolality of the sample for purposes of controlling the amount of cells per fluid volume.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 76 obvious.
VII.) Regarding applicant’s claim 167, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 63 obvious from which claim 167 depends.
Claim 167 recites adjusting the first flow rate and/or the second flow rate to achieve a gradient of osmolalities comprises: establishing a starting first flow rate and a starting second flow rate, wherein the starting second flow rate is greater than the starting first flow rate, thereby establishing a starting osmolality; establishing an ending first flow rate and an ending second flow rate, wherein the ending second flow rate is less than the ending first flow rate, thereby establishing an ending osmolality; and determining the gradient of osmolalities based on the starting osmolality and the ending osmolality.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach adjusting the first flow rate and/or the second flow rate to achieve a gradient of osmolalities comprises: establishing a starting first flow rate and a starting second flow rate, wherein the starting second flow rate is greater than the starting first flow rate, thereby establishing a starting osmolality; establishing an ending first flow rate and an ending second flow rate, wherein the ending second flow rate is less than the ending first flow rate, thereby establishing an ending osmolality; and determining the gradient of osmolalities based on the starting osmolality and the ending osmolality.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to adjust the first flow rate and/or the second flow rate to achieve a gradient of osmolalities comprises: establishing a starting first flow rate and a starting second flow rate, wherein the starting second flow rate is greater than the starting first flow rate, thereby establishing a starting osmolality; establishing an ending first flow rate and an ending second flow rate, wherein the ending second flow rate is less than the ending first flow rate, thereby establishing an ending osmolality; and determining the gradient of osmolalities based on the starting osmolality and the ending osmolality, for purposes of using osmolatities to determine concentrations of particles.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 167 obvious.
VIII.) Regarding applicant’s claim 168, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 167 obvious from which claim 168 depends.
Claim 168 recites that the starting first flow rate and the starting second flow rate are at a ratio of about 1:4.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach that the starting first flow rate and the starting second flow rate are at a ratio of about 1:4.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to conduct routine engineering optimization experimentation and determine suitable starting first flow rate and the starting second flow rate including those having a ratio of about 1:4 for analysis purposes.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 168 obvious.
IX.) Regarding applicant’s claim 169, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 167 obvious from which claim 169 depends.
Claim 169 recites that the ending first flow rate and the ending second flow rate are at a ratio of about 4:1.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach that the ending first flow rate and the ending second flow rate are at a ratio of about 4:1.
It would have been obvious to one of ordinary skill in the art to conduct routine engineering optimization experimentation and determine suitable ending first flow rate and the ending second flow rate including those having a ratio of about 4:1 for analysis purposes.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 169 obvious.
X.) Regarding applicant’s claim 170, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 49 obvious from which claim 170 depends.
Claim 170 recites that diluting the biological sample comprises simultaneously flowing the second diluent through the channel at a third flow rate.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach diluting the biological sample comprises simultaneously flowing the second diluent through the channel at a third flow rate.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to dilute the biological sample by simultaneously flowing the second diluent through the channel at a third flow rate for control purposes.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 170 obvious.
XI.) Regarding applicant’s claim 171, as noted above Nicoli in view of Krockenberger et al. and Wikipedia renders claim 170 obvious from which claim 171 depends.
Claim 171 recites automatically adjusting the third flow rate to achieve a gradient of osmolalities of the portion of the diluted sample having flowed through the aperture.
Nicoli in view of Krockenberger et al. and Wikipedia does not teach automatically adjusting the third flow rate to achieve a gradient of osmolalities of the portion of the diluted sample having flowed through the aperture.
It would have been obvious to one of ordinary skill in the art to modify Nicoli in view of Krockenberger et al. and Wikipedia to automatically adjust the third flow rate to achieve a gradient of osmolalities of the portion of the diluted sample having flowed through the aperture, for purposes of controlling the concentration of particles.
Therefore, Nicoli in view of Krockenberger et al. and Wikipedia renders claim 171 obvious.
Response to Arguments
Applicant’s arguments with respect to claims 1, 2, 7, 10, 18, 19, 25, 28-30, 33, 38, 156-160, 163, 165, 166 and 172 have been considered but are moot because, in view of applicant amending the claims to recite that the microparticles are used for calibration, Bouzahzah et al. been newly relied upon for this teaching.
Applicant's arguments filed 12/10/2025 regarding osmolalities have been fully considered but they are not persuasive.
Applicant argues that the Office Action is only led to the Wikipedia page for osmotic concentration to the application of improper hindsight.
Applicant overlooks that, as noted above, Holmes et al. cell counting in biological samples and osmolality analysis.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL S. GZYBOWSKI whose telephone number is (571)270-3487. The examiner can normally be reached M-F 8:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Capozzi can be reached at 571-270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/M.S.G./ Examiner, Art Unit 1798
/CHARLES CAPOZZI/ Supervisory Patent Examiner, Art Unit 1798