Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on Feb. 6, 2026 has been entered.
DETAILED ACTION
Acknowledgement is hereby made of receipt and entry of the communication filed on Feb. 6, 2026. Claims 46, 48-50, 53-55 and 60-62 are pending. Claims 50, 53-55 and 61-62 are withdrawn. Claims 46, 48-49 and 60 are currently examined.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 46-49 and 60 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. This rejection has the following grounds.
First, claim 46 recites “(SEQ ID NO: 101)”. Here, it is not clear if the sequence of SEQ ID NO: 101 is required for the recited “wild-type BNLF2b protein” of Epstein Barr virus (EBV), or if SEQ ID NO: 101 is just an example of a “wild-type BNLF2b protein” of EBV. Applicant must clarify. If SEQ ID NO: 101 is not required, Applicant must then clarify what is considered as a “wild-type BNLF2b protein” as opposed to a “mutant” BNLF2b protein of EBV.
Secondly, claim 46 recites “wherein the detection reagent is selected from the isolated polypeptide or variant thereof bearing a detectable label; or the detection reagent is selected from a secondary antibody bearing a detectable label.” It is not clear how to interpret the phrases “selected from the isolated polypeptide or variant thereof bearing a detectable label” and “selected from a secondary antibody bearing a detectable label.”
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 of this title, 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.
Claims 46, 48-49 and 60 are rejected under 35 U.S.C. 103 as being unpatentable over CN 106706921 A (published on May 24, 2017; provided in IDS filed on 09/29/2022) in view GenBank: AXY93084.1 (BNLF2b [human gammaherpesvirus 4]. Dated Sep. 18, 2018). Both references are of record in the previous Office actions.
Base claim 46, as amended, is directed to a kit comprising a capture reagent, in which the capture reagent is an isolated polypeptide consisting of from 39 to 74 contiguous amino acid residues of wild-type BNLF2b protein (SEQ ID NO: 101) of Epstein-Barr virus (EBV), and comprises amino acid residues 14-52, amino acid residues 1-52, amino acid residues 14-74, amino acid residues 11-56, amino acid residues 14-74, or amino acid residues 1-74, with reference to amino acid residue positions set forth in SEQ ID NO: 101;
and the kit further comprises an instruction for using the isolated polypeptide or variant thereof as the capture reagent to detect a level of an antibody specific to BNLF2b gene- encoded protein in a sample, optionally determining whether the subject has nasopharyngeal cancer or is at risk for nasopharyngeal cancer;
and wherein the kit further comprises a detection reagent, wherein the detection reagent is selected from the isolated polypeptide or variant thereof bearing a detectable label; or the detection reagent is selected from a secondary antibody bearing a detectable label.
CN 106706921 A teaches that the instant invention discloses an invention relating to a chip and kit for detecting serum antibodies to the nasopharyngeal carcinoma related EBV. Nasopharyngeal carcinoma can be effectively detected by detecting the levels of the serum EBV antibodies BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG. The disclosed nasopharyngeal carcinoma test chip and kit have high specificity and sensitivity and can be used for effective screening, early diagnosis and prognosis. See Abstract (human translation is used here to replace the machine translation provided by Applicant).
A human translation of the claims 1-8 of CN 106706921 A is presented below:
1. A chip for detecting nasopharyngeal carcinoma, characterized in that: the chip contains EBV proteins or polypeptides that can detect at least 2 of the following 10 serum antibodies, the 10 serum antibodies being BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG.
2. The chip according to claim 1, characterized in that: the chip contains EBV proteins or polypeptides that can detect at least 3 out of the 10 serum anti-EBV antibodies.
3. The chip according to claim 1, characterized in that: the chip contains EBV proteins or polypeptides that can detect at least 5 out of the 10 serum anti-EBV antibodies.
4. The chip according to claim 1, characterized in that: the chip contains EBV proteins or polypeptides that can detect all 10 out of the 10 serum anti-EBV antibodies.
5. A kit for detecting nasopharyngeal carcinoma, comprising EBV proteins or polypeptides for quantifying at least 2 of BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG.
6. The kit for detecting nasopharyngeal carcinoma according to claim 5, characterized in that: the kit comprises EBV proteins or polypeptides for quantifying at least 3 of BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG.
7. The kit for detecting nasopharyngeal carcinoma according to claim 5, characterized in that: the kit comprises EBV proteins or polypeptides for quantifying at least 5 of BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG.
8. The kit for detecting nasopharyngeal carcinoma according to claim 5, characterized in that: the kit comprises EBV proteins or polypeptides for quantifying BMRF-1-IgG, LF1-IgA, BNLF2b-IgA, BKRF4-IgG, BMRF1-IgA, BXLF1-IgG, BaRF1-IgG, BKRF3-IgG, BZLF1-E1-IgG and BNLF2b-IgG.
Paragraph [0032] of CN 106706921 A teaches preparation of a protein chip, a human translation is presented below:
“[0032] Dotting of Protein Chips
Tween-20 and protein solution expressed in 6 were added to a 384-well plate, and dotted onto a 16-pad Fast slide coated with NC by a dotting device. In the dotting process, temperature was kept at 20oC-22oC; humidity was kept at 30%-35%; 16 independent and identical arrays were made on one slide, with two duplicated dots for each protein. Refer to the instruction of Boao Smart Arrayer 136 printer for details.”
Paragraphs [0033] and [0034] of CN 106706921 A teach a hybridization process of a protein chip. A human translation is presented below:
“[0033] Protein chip hybridization
1) Put dotted protein chips in 16-well array incubation chamber on FASTrameslide holders;
2) Sealing: adding 100 ul blocking buffer to each pad, incubating at room temperature in a humidity box (putting 3 wet paper tissue on the bottom of the iron box) for 30 min, shaking at 60 rpm/min;
3) add to two 200 ul-PCR tubes each 100 ul low cross buffer-mild; adding mouse anti-His5 to one tube, and rat anti-HA to the other tube, the antibody concentrations being 1:100 and 1:250, respectively, incubating at room temperature for 1 hour, shaking at 150 rpm/min;
4) Serum pretreatment: after thawing serum on ice, add to a 200 ul-PCR tube: 0.5ul serum, 89.5ul low cross buffer-mild, 10ul E.coli lysate, concentration of serum being maintained at 1:200; incubate at RT for 1 hr, shaking at 150 rpm/min.
[0034] 5) suck off the blocking buffer, add 100 ul of pretreated (3) and (4), and put the FASTFrame slide holders in a humidity box, incubate at 4oC overnight, 60 rpm/min.
6) secondary antibody pretreatment: separately add low cross buffer-mild to biotinated-horse-anti-mouse IgG(H+L), biotinated rabbit anti-rat IgG(H+L), biotin conjugated goat anti-human IgG(H+L) and biotin conjugated goat anti-human IgA to make secondary antibody concentrations of 1:400, 1:400, 1:400 and 1:200, respectively; incubate at RT, shaking at 150rpm/min;
7) suck off the liquid from the pad, wash with TBST for three times, 5 mins each;
8) add 100ul of pretreated secondary antibody, incubate in humidity box at RT for 1 hr, 60 rpm/min;
9) repeat step (7);
10) add Cy5-conjugated streptavidin to low cross buffer-mild to make the antibody concentration at 1:200; incubate in dark at RT for 1 hr, 60 rpm/min;
11) transfer the slides to a staining jar, wash twice with TBST, 5 min each wash, wash twice with TBST, 5 min each wash, wash twice with dH2O, 1 min each wash;
12) dry the slide by spinning.”
Accordingly, CN 106706921 A teaches an array chip or kit thereof containing EBV proteins or polypeptides for the detection of serum antibodies specific the EBV proteins, including antibodies specific to BNLF2b (BNLF2b-IgA and BNLF2b-IgG). It teaches that the EBV proteins/polypeptides are dotted onto slides to produce the arrays (attached to surface of a solid support), it also teaches biotin-labeled secondary antibodies. However, it is silent on the sequence information about the EBV BNLF2b gene used in the invention, even though its teachings imply that any EBV BNLF2b protein or polypeptide that detects serum BNLF2b-IgG or BNLF2b-IgA is to be used.
GenBank: AXY93084.1 discloses the amino acid sequence of BNLF2b protein of an EBV, isolate “P2-1213”. An alignment between instant SEQ ID NO: 101 and GenBank: AXY93084.1 is shown below:
Score Identities Positives Gaps
196 bits(497) 96/98(98%) 97/98(98%) 0/98(0%)
SEQ1 1 MRPGRPLAGFYATLRRSFRRMSKRSKNKAKKERVPVEDRPPTPMPTSQRLIRRNALGGGV 60
MRPGRPLAGFY+TLRRSFRRMSKRSKNKAKKERVPVEDRPPTPMPTSQRLIRRNALGGGV
Genba 1 MRPGRPLAGFYSTLRRSFRRMSKRSKNKAKKERVPVEDRPPTPMPTSQRLIRRNALGGGV 60
SEQ1 61 RPDAEDCIQRFHPLEPALGVSTKNFDLLSLRCELGWCG 98
RPDAEDCIQR HPLEPALGVSTKNFDLLSLRCELGWCG
Genba 61 RPDAEDCIQRCHPLEPALGVSTKNFDLLSLRCELGWCG 98
Accordingly, GenBank: AXY93084.1 teaches a full-length BNLF2b of an EBV strain that contains 98% identities (differs in only two amino acids) relative to SEQ ID NO: 101.
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the current invention to arrive, from the teachings of CN 106706921 A, at the sequence characteristics of the polypeptides as claimed through routine experimental optimization, in testing polypeptides containing different lengths and/or regions out of a full-length “wild-type” EBV BNFL2b protein, such as the one disclosed in GenBank: AXY93084.1, for immunogenicity as well as feasibility in the assays as disclosed in CN 106706921 A, unless there is evidence that the specified sequence limitations are critical. Since CN 106706921 A already teaches a test for screening or diagnosing nasopharyngeal carcinomas by detecting antibodies against a panel of EBV antigens including the BNFL2b and amino acid sequence of BNFL2b is known in the art, there is a reasonable expectation of success that sequence regions of BNFL2b that are suitable for antibody assay can be identified through routine experimental optimization.
Response to Applicant’s Arguments
Applicants’ arguments and the Declaration under 37 CFR 1.132 by Dr. Li filed on Feb. 6, 2026 have been fully considered. Arguments regarding withdrawn rejections are moot. Applicants’ arguments relevant to the current rejections are addressed as follows.
Applicants argues, referring to Examples 6-7 and the Declaration, that the kit as claimed can detect nasopharyngeal cancer with both enhanced sensitivity and specificity as compared with the combination of EBNA1/IgA and VCA/IgA (two antibody method). Applicants argue that such results are unexpected.
Applicants’ argument is not persuasive. As an initial matter, “the burden of showing unexpected results rests on he who asserts them. Thus it is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (citation omitted). Moreover, “[i]t is well settled that unexpected results must be established by factual evidence. Mere argument or conclusory statements in the specification does not suffice.” In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (citation omitted). Applicant’s attention is directed to MPEP 716.02(b)-(e) for how unexpected results can be established. E.g., to evaluate if the claimed invention produces unexpected results, one must consider if the results produced by the claimed invention are commensurate in scope with the claims and how the results compare with the closest prior art. See MPEP Section 716.02(d) and (e). Here, Applicants provide results for sensitivity and specificity of diagnosing nasopharyngeal cancer by detection of IgAs against three antigens, BNLF2b, EBNA1 or VCA (see Examples 6-7). These results are not commensurate in scope of the invention as claimed, which encompasses a kit comprising a BNLF2b antigen as capture agent. Additionally, comparison between the diagnostic sensitivity and specificity between the processes using BNLF2b as antigen and EBNA1/VCA as antigen cannot be considered as a comparison with the closest prior art, since CN 106706921 A discloses a test for nasopharyngeal carcinoma by detection of IgA/IgG’s against a panel of EBV antigens including BNLF2b. A comparison with the test method disclosed in CN 106706921 A would be more persuasive.
Applicants argue that CN ‘921 only demonstrate the diagnostic effectiveness of the 10 EBV antigens as a combination, that it came to the conclusion that the 10-antibodies marker screened in the study will be applied to nasopharyngeal cancer screening and clinical diagnosis, and that a person skilled in the art could at most anticipate the differential expression of this marker between cancer and healthy population, rather than such a significant diagnostic efficiency. Applicants argue that BNLF2b fragment such as aa1-74 provided in this application also exhibited advantages over full-length protein, referring to the Li Declaration which presents that recombinant r1-74-hFc exhibits higher reactivity than the full-length protein r1-98-ApaFc under coating conditions with equimolar concentrations. Applicants further refer to Ma et al. Int J. Cancer, 2024: 155(10):1874-1885, attached to the Li Declaration, showed that the detection results based on full-length BNLF2b protein did not demonstrate significant advantages compared to EBNA1/IgA.
Applicants’ arguments are not persuasive. CN ‘921 explicitly teaches that as few as 2 out of the 10 serum antibodies may be included in the disclosed detection chip, such subgroups are expected to include BNLF2b-specific antibodies. Moreover, by reciting “which comprises a capture agent”, the instant claims do not exclude other EBV antigens that are not BNLF2b. The difference between the instant invention and that of CN ‘921 is that CN ‘921 is silent on the sequence of BNLF2b to be used in the antibody detections. A skilled artisan would have found it obvious to test any regions of the BNLF2b protein in routine experimental optimization to find best regions to be used for the purpose of antibody detection unless there is evidence that the claimed regions are critical.
As to applicants’ argument that recombinant r1-74-hFc exhibited higher reactivity than the full-length protein r1-98-ApaFc under coating conditions with equimolar concentrations and that Ma et al. showed that the detection results based on full-length BNLF2b protein did not demonstrate significant advantages compared to EBNA1/IgA, Applicants have not elaborated how these results argue against the current rejection. Applicants appear to be arguing that these results are unexpected. If this is the case, Applicant’s attention is directed to MPEP 716.02(b)-(e) for how unexpected results can be established.
Applicants argue that the Office action does not address either the required motivation or the reasonable expectation of success that a person of ordinary skill in the art must have had in order to have considered the asserted modifications of these references so as to arrive at the amended claims, and that there is no reason to modify or combine the cited references, and so there cannot be any reasonable expectation of success in pursuing their asserted combination.
Applicants’ arguments are not persuasive. See the rejection body above for the discussions on motivations and expectation of success to combine the cited references CN ‘921 and GenBank: AXY93084.1.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIANXIANG (NICK) ZOU whose telephone number is (571)272-2850. The examiner can normally be reached on Monday - Friday, 8:30 am - 5:00 pm, EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, MICHAEL ALLEN, on (571) 270-3497, can be reached. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NIANXIANG ZOU/
Primary Examiner, Art Unit 1671