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 .
Response to Arguments
Applicant's arguments filed 07/28/26 have been fully considered but they are not persuasive.
Regarding rejection of Clarke and based on Clarke, Applicant argues that 1) it would not have been obvious to one of ordinary skill in the art before the effective filing date to modify centrifuge speed of the method of Clark to derive the invention.
MPEP 2144.05, I, states “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists… Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.").”
In this instance, Clarke discloses centrifuging the blood sample at 3000 x g to obtain a first supernatant and collecting the first supernatant (…plasma was harvested at 4
℃
by centrifuging twice, first at 3000g for 10 min to collect platelet-free plasma to collect platelet-poor plasma. Blood sample collection and coagulation assays, para. 1, page 354), which is close but not overlap with the claimed 1500 g for the first step;
centrifuging the first supernatant at 5000 x g to 50,000 x g to obtain a second supernatant and collecting the second supernatant (…then at 10,000g for 10 min to collect platelet-free plasma. para. 1, page 354), which is close but not overlap with the claimed range of 16,000 g.
Secondary reference Bernadette details the steps for conducting Thrombo-Wellcotest test, same test used in Clarke, for detection of FDP. After obtaining sera but before subjecting the sera to Thrombo-wellcotest, Bernadette discloses a step of diluting a supernatant 1:5 to 10,000 (…dilutions of…1 in 16, and 1 in 64 were made in glycine-saline buffer, Materials and Methods, para. 4, lines 1-3, page 681), which overlaps with the claimed range.
Regarding the centrifuge speed difference, as the claim simply requires “non-human animal”, the slight difference in the centrifuge speed could be result of a routine optimization and experimentation by one of ordinary skill in the art.
In response to applicant's argument about Bernadette using thrombo-wellcotest on sera instead plasma, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). First, the reference is used to establish thrombo-wellcotest needs a dilution step when dealing with blood sample. Second the remark does not provide any evidence of criticality or unexpected results from such a broad range. Even with the difference between using sera and plasma, one of ordinary skill in the art would have been able to utilize the instruction provided by Bernadette to determine an appropriate dilution ratio for the test.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references (Incorporating Clarke and Raut to Amdl), the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it is known from arts cited that centrifugation is required in order to remove liquid plasma from cellular components. The spirit of the invention and prior arts cited is determining the optimal centrifuge procedure and speed for best separation efficiency. Clarke is the closest arts to cure the deficiency in this respect. For separation of plasma and serum from blood, the main difference is sample preparation procedure instead of separation/centrifugation procedure. In this case, separating serum requires the blood sample to clot with no anticoagulant being added, on the other hand, separating plasma requires addition of anticoagulant to the sample. As the ultimate goal is to completely remove platelet from plasma and serum, it would have been obvious to one of ordinary skill in the art to have considered the centrifugation speed, at the minimum, as a starting point for routine optimization to derive the claimed speeds.
For the reason above, the rejection is maintained.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-8, 10, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Amdl (WO 2010/114514 A1) in view of Raut (Development of an ELISA for the Quantification of Fibrin in Canine Tumours, 1999) and Mischke (Detection of fibrin generation alterations in dogs with haemangiosarcoma using resonance thrombography, 2004) as cited in the previous Office Action, and further in view of Clark.
Regarding claims 1 and 8, Amdl teaches a method for quantifying fibrin/fibrinogen degradation products (FDP) in a blood sample, the method comprising:
obtaining a blood sample (obtaining a biological sample from said subject, claim 1; para. [0031] discloses biological sample can be blood; para [0065], human serum);
diluting the processed plasma sample at 1:200 (Human serum samples were diluted (1 :200) and were applied to the wells. Para. [0065])
contacting the processed plasma sample with a reagent that contains antibodies specifically binding to FDP (The wells of the microtiter plate were coated with affinity purified rabbit anti-FDP antibodies. Human serum samples were diluted (1 :200) and were applied to the wells. FDP was captured from the serum samples by the anti-FDP antibodies immobilized on the well of the microtiter plate…. After a wash step, anti-FDP antibodies conjugated to HRP (detection antibody) were added to the wells. The anti-FDP-HRP complex binds to the captured FDP to form an immunological sandwich with the immobilized anti-FDP antibodies. Para. [0065]);
removing antibodies not bound to FDP (After a wash step…After a second wash step…, para. [0065]); and
detecting an amount of antibodies specifically bound to FDP, thereby quantifying FDP in the blood sample (The end point was read in a micro plate reader at 450 nm after the reaction was stopped with 0.1 N HCI. The intensity of the color formed is proportional to the amount of FDP in the serum. The amount was quantified by interpolation from a standard curve using purified FDP calibrators. Para. [0065]).
Amdl does not specifically teach obtaining a blood sample from a non-human animal, and centrifuging the blood sample at 10 x g to 2,000 x g to obtain a first supernatant; collecting the first supernatant; centrifuging the first supernatant at 5,000 x g to 50,000 x g to obtain a second supernatant; collecting the second supernatant
With respect to using blood sample from non-human, Amdl discloses using the detection is done using purified rabbit anti-FDP antibodies as capture antibody and anti-FDP antibodies conjugated to horseradish peroxidase as the detection antibodies.
In an analogous art, Raut discloses an ELISA for the quantification of Fibrin in canine tumours (Abstract). The procedure involved using a monoclonal antibody (MAb 1H10) for canine fibrin as a capture antibody (A fibrin specific monoclonal antibody (MAb 1H10), previously developed in our laboratory, was used as the capture antibody in the ELISA. 1.2. Antibodies) and a polyclonal antibody to human fibrinogen conjugated to horseradish peroxidase as the detection antibody (HRP-conjugated rabbit immunoglobulins to human fibrinogen was used as the detection antibody in the ELISA [26] and was purchased from Dakopatts A/s (Glostrup, Denmark). This polyclonal antibody, cross-reacts with and has a high avidity for, canine fibrin despite having being raised to human fibrin(ogen) (Dakopatts A/s, personal communication). 1.2. Antibodies).
As both Amdl and Raut discloses using HRP-conjugated polyclonal antibodies from rabbit as an detection antibodies for the ELISA, also Raut recognizing rabbit immunogloublin’s cross reactivity with other species such as dog/canine, it would have been obvious to one of ordinary skill in the art before the effective filing date to have tried using the method of Amdl with canine blood sample with a reasonable expectation of success in order to derive a method of quantifying FDP in canine serum sample, expecting that the rabbit anti-FDP antibodies to cross-react with canine biological samples.
Regarding centrifuging the blood sample at 10 x g to 2,000 x g to obtain a first supernatant; collecting the first supernatant; centrifuging the first supernatant at 5,000 x g to 50,000 x g to obtain a second supernatant; collecting the second supernatant, Mischke discloses a method of detection of FDP in dogs, the method of collecting and processing blood sample comprising:
centrifuging the blood sample at at 10 x g to 2,000 x g to obtain a first supernatant (To prepare citrated blood, blood was collected into plastic tubes containing one part (1 ml) 0.11 mol/l sodium citrate solution (Roche Diagnostics, Mannheim, Germany) for nine parts (9 ml) of blood and immediately mixed by careful rocking. Platelet poor plasma for coagulation assays was gained by centrifugation twice for 10 min at 2000 g; Collection of sample material, pg. 230);
collecting the first supernatant (Interpreted as the supernatant after the first centrifugation);
centrifuging the first supernatant at 1000 x g to 50,000 x g to obtain a second supernatant (Platelet poor plasma for coagulation assays was gained by centrifugation twice for 10 min at 2000 g; Collection of sample material, pg. 230) (The second centrifugation also occurs at 2000 g); and
collecting the second supernatant (The final supernatant was then collected; Collection of sample material, pg. 230).
Since isolation of plasma from blood by centrifugation was well known in the art, it would have been obvious to one of ordinary skill in the art to incorporate the method of Mischke to the method of Modified Amdl. Doing so obtains a clarified plasma sample for improved detection of FDP.
The modification of Amdl in view of Raut and Mischke does not disclose requiring the second centrifugation step to have higher relative centrifugal force (RCF) (16000 x g) compared to that of the first step (1600 x g).
Analogous art Clark discloses a method for quantifying fibrin/fibrinogen degradation product (FDP) in a blood sample using latex agglutination (Methods, pages 354-355), the method comprising:
obtaining a blood sample from a non-human animal (Blood samples were collected from the jugular vein of each rabbit, Animals and experimental design, para. 2, page 354);
centrifuging the blood sample at 3000 x g to obtain a first supernatant and collecting the first supernatant (…plasma was harvested at 4
℃
by centrifuging twice, first at 3000g for 10 min to collect platelet-free plasma to collect platelet-poor plasma. Blood sample collection and coagulation assays, para. 1, page 354);
centrifuging the first supernatant at 5000 x g to 50,000 x g to obtain a second supernatant and collecting the second supernatant (…then at 10,000g for 10 min to collect platelet-free plasma. para. 1, page 354). As ELISA method generally requires removal of as much platelet as possible from serum/plasma sample in order to ensure an accurate measurement/detection for sensitive method like ELISA, it would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the second centrifugation step to 10,000 g as suggested by Clark to derive the claimed invention in order to create a platelet-free plasma/serum for better detection/quantification of FDP.
Regarding claim 2, Modified Amdl discloses the claimed invention as discussed above in claim 1. Mischke (after incorporation with Amdl) discloses the blood sample is anti-coagulated (citrated blood; Collection of sample material, pg. 230. Note: the plasma is treated with citrate, an anticoagulant).
Regarding claim 3, Modified Amdl discloses the claimed invention as discussed above in claim 1. The modification proposed in claim 1 would have disclosed a method of analyzing blood sample from canine (See rejection of claim 1).
Regarding claim 4, Modified Amdl discloses the claimed invention as discussed above in claim 2. Mischke (after incorporation with Amdl) discloses the anti-coagulated blood sample is centrifuged for 10 min (To prepare citrated blood, blood was collected into plastic tubes containing one part (1 ml) 0.11 mol/l sodium citrate solution (Roche Diagnostics, Mannheim, Germany) for nine parts (9 ml) of blood and immediately mixed by careful rocking. Platelet poor plasma for coagulation assays was gained by centrifugation twice for 10 min at 2000 g; Collection of sample material, pg. 230).
Regarding claim 5, Modified Amdl discloses the claimed invention as discussed above in claim 4. Clarke, after incorporation into Amdl, discloses the first supernatant is centrifuged for 30s to 30 min (…then at 10,000g for 10 min to collect platelet-free plasma. para. 1, page 354).
Regarding claim 6-7, Modified Amdl discloses the claimed invention as discussed above in claim 5. Amdl (after incorporating with Mischke) discloses the processed/separated blood sample was diluted 1:200 before the contacting step (Human serum samples were diluted (1 :200) and were applied to the wells.para.[0065])
Regarding claim 10, Modified Amdl discloses the claimed invention as discussed above in claim 8. Amdl discloses the immunoassay is ELISA (para.[0023]).
Regarding claim 11, Modified Amdl discloses the claimed invention as discussed above in claim 10. Amdl discloses the ELISA that employs a polyclonal rabbit sera that contains antibodies specifically binding to FDP (para. [0063]).
Claim(s) 8, 9, and 13-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clarke in view of Bernadette (The detection of fibrinogen/fibrin degradation products by means of a new antibody-coated latex particle, 1972) as cited in IDS filed on 08/22/25.
Regarding claim 8, Clark discloses a method for quantifying fibrin/fibrinogen degradation product (FDP) in a blood sample (Methods, pages 354-355), the method comprising:
obtaining a blood sample from a non-human animal (Blood samples were collected from the jugular vein of each rabbit, Animals and experimental design, para. 2, page 354);
centrifuging the blood sample at 3000 x g to obtain a first supernatant and collecting the first supernatant (…plasma was harvested at 4
℃
by centrifuging twice, first at 3000g for 10 min to collect platelet-free plasma to collect platelet-poor plasma. Blood sample collection and coagulation assays, para. 1, page 354);
centrifuging the first supernatant at 5000 x g to 50,000 x g to obtain a second supernatant and collecting the second supernatant (…then at 10,000g for 10 min to collect platelet-free plasma. para. 1, page 354);
subjecting the second supernatant to quantitative immunoassay that specifically detects FDP, thereby quantifying the amount of FDP in the blood sample (Sera of six animals…were tested…for fibrin degradation product (FDPs) with a commercially available test kit (Thrombo-Wellcotest,Burroughs Wellcome Co., Kansas City, Mo.) used according to manufacturer's instructions. Blood sample collection and coagulation assays, para. 1, lines 13-18, page 354).
Clarke does not explicitly discloses diluting the second supernatant 1:5 to 1:10,000. Instead, Clarke simply discloses the supernatant were subsequently tested with Thrombo-Wellcotest commercially available test kit.
Analogous art Bernadette details the steps for conducting Thrombo-Wellcotest test for detection of FDP. After obtaining sera but before subjecting the sera to Thrombo-wellcotest, Bernadette discloses a step of diluting a supernatant 1:5 to 10,000 (…dilutions of…1 in 16, and 1 in 64 were made in glycine-saline buffer, Materials and Methods, para. 4, lines 1-3, page 681). It would have been obvious to one of ordinary skill in the art before the effective filing date to have incorporated a diluting step as taught by Bernadette as the preparation of diluted sample is a necessary step for conducting Thrombo-Wellcotest, and Clarke further suggests the sera sample should be used according to the manufacturer’s instruction (Blood sample collection and coagulation assays, para. 1, lines 13-18, page 354).
Clarke does not explicitly disclose centrifuging the blood sample at 2000 x g to obtain a first supernatant. Instead, Clarke discloses the first centrifuge step takes place at 3000 x g. Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium.).
Regarding claim 9, Modified Clarke discloses the claimed invention as discussed above in claim 8. Clarke discloses the blood sample is anti-coagulated (…blood from each rabbit was dispensed in a 3-ml portion into a potassium EDTA collection tube and in a 5-ml portion into 3.8 trisodium citrate…Citrated sample…Blood sample collection and coagulation assays, lines 3-5, para. 1, page 354).
Regarding claim 13, Modified Clarke discloses the claimed invention as discussed above in claim 9. Clarke discloses the non-human animal is a rabbit (Abstract).
Regarding claim 14, Modified Clarke discloses the claimed invention as discussed above in claim 9. Clarke discloses the anti-coagulated blood sample is centrifuged for 30 s to 30 min (first at 3000g for 10 min; Blood sample collection and coagulation assays, line 7, para. 1, page 354).
Regarding claim 14, Modified Clarke discloses the claimed invention as discussed above in claim 9. Clarke discloses the anti-coagulated blood sample is centrifuged for 30 s to 30 min (first at 3000g for 10 min; Blood sample collection and coagulation assays, line 7, para. 1, page 354).
Regarding claim 15, Modified Clarke discloses the claimed invention as discussed above in claim 14. Clarke discloses the first supernatant is centrifuged for 30 s to 30 min (then at 10,000g for 10 min; Blood sample collection and coagulation assays, line 8, para. 1, page 354).
Regarding claim 16, Modified Clarke discloses the claimed invention as discussed above in claim 15. Bernadette discloses the second supernatant is diluted 1:50 to 1:5000 before the subjecting step (dilutions of…1 in 64 were made in glycine saline buffer; Materials and Methods, para. 4, lines 2-3, page 681).
Regarding claim 17, Modified Clarke discloses the claimed invention as discussed above in claim 16. Neither Bernadette nor Clarke discloses the second supernatant is diluted 1:100 to 1:1000 before the subjecting step. Instead, the closest value Bernadette discloses is 1 to 64 (dilutions of…1 in 64 were made in glycine saline buffer; Materials and Methods, para. 4, lines 2-3, page 681). Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium.).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Amdl in view of Mischke, Raut, and Clark as applied to claim 10 above, and further in view of Cornell (Fibrinolysis, Published 10/23/2020, Cornell University College of Veterinary Medicine) as cited in previous Office Action.
Regarding claim 12, Modified Amdl discloses the claimed invention as discussed above in claim 10. However, neither Amdl, Mischke, Clark nor Raut discloses using monoclonal antibodies specifically binding to FDP. At best, Raut discloses using a monoclonal antibody specific for human and canine fibrin (In this study, we describe a novel sensitive enzyme-linked immunosorbent assay (ELISA) for the quantification of fibrin in canine tumours. The assay is based on a monoclonal antibody specific for human and canine fibrin described previously 20, 21 as the solid phase capture antibody and a horseradish peroxidase (HRP)-conjugated polyclonal antibody against human fibrin(ogen) as the detection antibody. Pg. 12, left col., first paragraph), and Amdl suggests monoclonal antibodies can be used as alternative (para. [0025]).
In an analogous art, Cornell discloses testing D-dimer using serum FDP kit (D-dimer, paragraph 3). Cornell acknowledges that D-dimer are typically detected in human patients with assays using monoclonal antibodies specific for the human D-dimer epitope but also acknowledges that some of these monoclonal antibodies cross react with other animal species and can be used for veterinary patients (Certain D-dimer latex agglutination assay have been validated in the dog, cat and horse. The test is run similarly to the FDP assays, but the sample can be assayed undiluted (to obtain a positive or negative result) or can be serially diluted to obtain a semi-quantitative D-dimer value. It is far better to get a semi-quantitative D-dimer result, because higher values may be more specific for thrombembolic conditions.)(para. 3, D-dimer).
Therefore, it would have been obvious to one of ordinary skill in the art to have substituted the polyclonal antibodies of the method in Modified Amdl with a monoclonal alternative disclosed by Cornell with a reasonable expectation of success. Doing so allows one to derive a method for testing for D-dimer in dog serum.
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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/M.H./Examiner, Art Unit 1758 /LYLE ALEXANDER/Supervisory Patent Examiner, Art Unit 1797
