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 .
Status of claims
Claims 1, 2, 4, 7, 8, 10, 11, 15, 17, 19, 21, 23-29 and 31 as amended on 9/17/2025 are under examination in the instant office action.
Claims 32 and 34-37 were withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/12/2025.
Claim Rejections - 35 USC § 112
Indefinite
Claims 2, 11, 25, 26 and 27 as amended are/remain rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 is rendered indefinite by the phrase “proud” (line 4) because it is unclear what is intended for this characteristic.
Claim 11 is indefinite because it appears repeat the same limitation as recited in claim 1. Thus, it is unclear what is intended for the product of claim 11.
Claim 25 as result of amendment of claim 1, as drawn to deletion of a gelling agent , is now indefinite for insufficient antecedent basis for this limitation in the claim.
Claims 26 and 27 are rendered indefinite by the phrase “nutrients selected from” several conventional media. Thus, claim recites that some unidentified selected nutrients are used but not the whole media are used. Therefore, it is unclear what specific nutrients from the media are incorporated into the product of claim 1.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 4, 7, 8, 11, 19, 23-28 and 31 as amended remain/are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by London et al (IDS reference; PLOS ONE, 2019, vol. 5, issue 1, e8609, pages 1-16).
The cited reference by London et al discloses a nutrient medium disposed in a container as intended for a rapid detection of microorganisms (entire document including figure 3), wherein the medium is a nutrient agar (page 3, col. 1, line 4) with a filter composed of cellulose and a black dye that renders the medium black as intended to reduce fluorescence background (page 3, col. 1, lines 14-17) from exposure to light of CCD lamp (figure 3). The medium is solid and flat (figure 3).
Notes: alternative language “at least one dye or pigment” does not limit size of particles for a dye.
Thus, the cited reference anticipates claims 1, 2, 4, 7, 8, 11 and 19.
As applied to claims 23-24: the medium is intended for detection of microorganism including Bacillus, Burkholderia, Escherichia, Salmonella, Streptomyces (table 1).
As applied to claims 25 and 28: the medium comprises gelling agent such as agar and solid.
As applied to claims 26, 27 and 31: the medium comprises nutrients of trypticase soy medium or trypticase soy agar TSA (page 3, col. 2, last paragraph). The pH range of conventional microbial media falls within the range 3-12.
Thus, the cited reference by London anticipates the claimed product.
Claims 1, 2, 4, 7, 8, 11, 17, 21, 23, 24, 26, 27, 29 and 31 as amended remain/are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by US 2002/0191824 (Reynolds et al).
The cited US 2002/0191824 (Reynolds et al) discloses a nutrient medium comprising a fluorescent dye for detection of viable cells and a quenching dye to reduce background fluorescence of non-viable cells masking detection of viable cells (see abstract, see par. 0069). In particular, the nutrient medium is a RPMI-1640 with FCS medium (0061-0062) which appears to be liquid since cells are suspended (examples).
Thus, the cited document anticipates claim 1. Notes: alternative language “at least one dye or pigment” does not limit size of particles for a dye (a quenching dye in the cited reference).
The medium is disposed in a container; and it would be flat or would have a flat surface inside the container as result of gravity within the meaning of the claims 2 and 4.
As applied to claims 7, 8, 11 and 17: The quenching dye is black and it is an azo dye such as acid black 2 (0054) which inherently comprises carbon particles.
As applied to claims 21, 26, 27 and 31: particular nutrient medium RPMI-1640 with FCS provides for at least some “selected” nutrients that would be at the very least salts of conventional media (sodium chloride, for example) listed in the claims 26 and 27, free radical scavenger or vitamin nicotinamide listed in claim 21 and has physiologically acceptable pH which falls within the claimed range.
With respect to claims 23 and 24 it is noted that the claims are directed to intended use limitations such as microorganisms to be detected, wherein the microorganisms are not incorporated into the medium product of the claims 1, 23 and 24.
As applied to claim 29: the liquid medium is disposed into 96-weel plate (examples) or in a generic “porous matrix” or a generic structure with voids within the broadest meaning of the claims.
Thus, the cited US 2002/0191824 (Reynolds et al) anticipates the claimed product.
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.
Claims 1, 2, 4, 7, 8, 10, 11, 13, 15, 17, 19, 21, 23-29 and 31 as amended remain/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0072377 (Browne et al), US 2002/0191824 (Reynolds et al) and US 5,811,312 (Hasegawa et al).
The cited US 2015/0072377 (Browne et al) discloses a microorganism detection medium system with a nutrient medium disposed in a container as intended for capturing, culturing and detecting microorganisms (entire document including figure 1), wherein the medium is a nutrient agar (figure 1; par. 0044) with a filter composed of cellulose and a black dye that renders the medium disposed in the container visually black as a whole (figure 1, par. 0042). The medium is solid, rounded and flat (figure 1, par. 0044). The nutrient medium is solid or semi-solid including claim-recited TSA and/or R2A (par.0044), wherein at the very least R2A provides for free radical scavenger such as sodium pyruvate. The microorganisms to be detected are bacteria, fungi, protists (0037). The gelling agent is agar (0044). The disclosed media (0044) have physiologically acceptable pH which falls within the claimed range.
In particular, the cited US 2015/0072377 (Browne et al) discloses incorporation of a black pigment or dye into the membrane attached to the nutrient medium disposed in the container but the black pigment is not mixed into the nutrient medium.
However, the cited US 2022/0191824 (Reynolds et al) discloses a nutrient medium, wherein the nutrient medium comprises a quenching dye mixed into the nutrient medium for reduction of background noise of background fluorescence of non-viable cells masking detection of viable cells (see abstract, see par. 0069), wherein the quenching dye is black, is an azo dye such as acid black 2 (0054) which inherently comprises carbon particles or carbon black. The cited US 2022/0191824 (Reynolds et al) explicitly acknowledges and discloses that incorporation of the quenching dye including black quenching dye reduces background noise of background fluorescence of non-viable cells masking detection of viable cells stained with fluorescent dye.
In addition, the cited US 5,811,312 (Hasegawa et al) teaches that incorporation of black dye absorbing fluorescence into the nutrient medium reduces background noise and improves optical measurements (see abstract, see figure 1), wherein the black dye particles are fine carbon black particles with diameter of about 200 nm (col.13, line 55).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to add black dye into the nutrient medium of the microorganism detection medium system of US 2015/0072377 (Browne et al) with a reasonable expectation of success in reducing background noise and improving visual and/or optical detection of microorganisms because the prior art explicitly acknowledges that incorporation of the quenching dye including black quenching dye reduces background noise of background fluorescence or background colors (US 2022/0191824 (Reynolds et al)) and improves optical or visual detection (US 5,811,312 (Hasegawa et al).
Thus, the claimed invention as a whole was clearly prima facie obvious, especially in the absence of evidence to the contrary.
The claimed subject matter fails to patentably distinguish over the state art as represented be the cited references. Therefore, the claims are properly rejected under 35 USC § 103.
Response to Arguments
Applicant's arguments filed on 9/17/2025 have been fully considered but they are not persuasive.
The rejection claims 2, 11, 26 and 27 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, was not withdrawn because applicants did not provide definitions and/or arguments to address the rejection of record.
With regard to claim rejection under 35 U.S.C. 102 (a) (1) as being anticipated by London et al (PLOS ONE, 2019, vol. 5, issue 1, e8609, pages 1-16) Applicants argue that the claim 1 is now limited to specific particle size of the pigment component that are nor disclosed by the cited reference.
This argument is not found persuasive with regard to the claim language. Claim 1 recites an alternative incorporation of “at least one dye or pigment; and, thus, particle sizes are solely required for the pigment.
With regard to claim rejection under 35 U.S.C. 102 (a) (1) as being anticipated by US 2002/0191824 (Reynolds et al) Applicants argue that the claim 1 is now limited to specific particle size of the pigment component that are nor disclosed by the cited reference.
This argument is not found persuasive with regard to the claim language. Claim 1 recites an alternative incorporation of “at least one dye or pigment; and, thus, particle sizes are solely required for the pigment.
With regard to claim rejection under 35 U.S.C. 103 as being unpatentable over US 2015/0072377 (Browne et al), US 2002/0191824 (Reynolds et al) and US 5,811,312 (Hasegawa et al) Applicants argue that the teaching of Hasegawa cannot be combined with the other references since the liquid of Hasegawa is not a nutrient medium as required by the pending claims and because the purpose of the Hasegawa’s liquid is not culturing microorganisms; and thus, one of ordinary skill in the art would not be motivated to incorporate Hasegawa’s carbon black dye particles (that are characterized by size about 200 nm) into microbiological culture medium.
First, this argument is not found persuasive because the claimed invention is directed to a composition of matter but not to a method using the composition for culturing microorganisms.
Further, as applied to the cited prior art and the claimed invention: The cited US 2022/0191824 (Reynolds et al) explicitly acknowledges and discloses that incorporation of the dye including black quenching dye reduces background noise of background fluorescence of non-viable cells masking detection of viable cells stained with fluorescent dye in microbiological media, thus, providing for improvement in detection of microorganisms. The cited reagent liquid of Hasegawa with carbon black dye particles (that are characterized by size about 200 nm which is in the claim-recited range) provides for improvement in fluorescent measurements in microbiology as explicitly acknowledged by Hasegawa (col. 14, lines 5-7; col. 13, lines 53-55).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to add black dye (with particle size as taught/suggested by Hasegawa) into the nutrient medium of the microorganism detection medium system of US 2015/0072377 (Browne et al) with a reasonable expectation of success in reducing background noise and improving visual and/or optical detection of microorganisms because the prior art explicitly acknowledges that incorporation of the quenching dye including black quenching dye reduces background noise of background fluorescence or background colors in microbiological media (US 2022/0191824 (Reynolds et al)) and the use of black quenching dye with particle size about 200 nm improves optical or visual detection in compositions and/or applications based on generation of fluorescent signals (US 5,811,312 (Hasegawa et al).
No claims are allowed.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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Vera Afremova
January 14, 2026
/VERA AFREMOVA/ Primary Examiner, Art Unit 1653