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 .
Election/Restrictions
Applicant’s election without traverse of claims 13-20 in the reply filed on October 9, 2025 is acknowledged. Claims 1-3, 5-7, 9-12, 21 and 22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on March 1, 2023 and March 6, 2023 are being considered by the examiner.
Specification
The abstract of the disclosure is objected to because the word “piasmonic” is misspelled.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claim 18 is objected to because of the following informalities:
In claim 18, the limitation “oxygen permeable matrix” should be preceded by “the”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA (or as subject to pre-AIA ) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if 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.
Claims 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sarkisov et al. (“Sarkisov”) (US 2008/0233008 A1) in view of Kennedy et al. (“Kennedy”) (US 2003/0082321 A1) and Van Duyne et al. (“Van Duyne”) (US 2009/0118605 A1).
With respect to claim 13, Sarkisov discloses a chemical (e.g. gas, see [0027] and [0116]) sensor comprising (see Fig. 2 and [0055]):
a nanostructure comprising a noble metal (e.g. gold, see [0050]) exhibiting surface plasmonic resonance (SPR) properties (see [0055] and [0097]), wherein the nanostructure exhibits resonance having a peak (546 nm) falling within the claimed range (see Fig. 8B);
a chemical-sensitive dye (see [0055] and [0097]), wherein the plasmonic resonance of the nanostructure overlaps with the absorbance of the dye (see [0096]); and
a permeable matrix (sol-gel, see [0097]) in which the nanostructure and the dye are dispersed (see [0055]).
The sensor taught by Sarkisov differs from the claimed invention in that Sarkisov does not disclose:
that the dye is sensitive to oxygen; or
that the nanostructure comprises nanoparticles on its surface.
Regarding the oxygen-sensitive dye, the disclosure of Sarkisov is not limited to the detection of any one gaseous analyte. That said, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have configured the Sarkisov sensor to detect any gas of interest, including oxygen, as taught by Kennedy (see [0002] of Kennedy disclosing that oxygen sensing has practical use in the packaging industry). Naturally, the modification would involve using an oxygen-sensitive dye, such as metalloporphyrin or erythrosine B (see [0108] of Kennedy), which absorbs light at a wavelength (550 nm for erythrosine, see [0175] of Kennedy; the metalloporphyrin taught by Kennedy comprises the claimed optical properties according to Applicant’s specification) that falls within the claimed range and overlaps the resonance of the nanostructure taught by Sarkisov.
With respect to a nanostructure comprising nanoparticles on its surface, Van Duyne discloses a plasmon resonance-based sensor that utilizes a nanostructure in the form of silica nanospheres coated with noble metal (see [0014]). According to Van Duyne, nanosphere lithography, which is used to produce the nanostructure, is inexpensive and the size and shape of the nanostructure can be precisely controlled (see [0079]). In light of the disclosure of Van Duyne, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the nanostructure taught by Van Duyne in the sensor taught by Sarkisov.
With respect to claims 14 and 15, the nanostructure would comprise a silica nanosphere, as discussed above.
With respect to claim 16, the noble metal nanoparticles are gold, as discussed above.
With respect to claim 17, the oxygen sensitive dye would be a metalloporphyrin (e.g. platinum octaethylporphyrin, see [0108] of Kennedy) having absorbance that falls within the claimed range and overlaps the resonance of the nanostructure taught by Sarkisov, as discussed above.
With respect to claim 18, the oxygen permeable matrix is a sol-gel matrix, as discussed above.
With respect to claim 19, Sarkisov further discloses a substrate 211 having a surface on which the sensor is deposited (see Fig. 2).
With respect to claim 20, the substrate, and hence the surface, is made from a polymer such as PMMA (see [0023] of Sarkisov).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL S HYUN whose telephone number is (571)272-8559. The examiner can normally be reached M-F 8:30-5:00.
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/PAUL S HYUN/Primary Examiner, Art Unit 1796