DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 Jan 9, 2026 has been entered.
Claim Amendments
3. The amendments filed Jan 9, 2026 have been entered. Claims 1, 10, 12 and 19 were amended. It is noted that Claim 12 is labelled as “Currently Amended”, however it appears that claim 12 does not contain any changes to the claim.
4. Claims 1-20 are under consideration in this Office Action.
Withdrawal of Rejection
5. The rejection of claims 1-18 under 35 U.S.C. 103 as being unpatentable over Ingham et al., in view of Gazenko is withdrawn in view of Applicants amendments and arguments.
Response to Arguments
6. Applicant’s arguments, filed Jan 9, 2026, with respect to the rejection of claims 1-18 under Ingham et al., in view of Gazenko have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new grounds of rejection is made in view of Wagner et al., (WO 201206828287 published 2012-05). The proposed amendment is drawn to the inclusion infrared wavelength and light source. Wagner et al., teach delivering quantum cascade lasers (QCL) light to a single cell to induce resonant mid-IR absorption by one or more analytes of the cell, and detecting, using a mid-infrared detection facility, the transmitted mid-infrared wavelength light, wherein the transmitted mid-infrared wavelength light is used to identify a cell characteristic [abstract]. The wavelength may coincide with the regions for infrared spectroscopy, and with the wavelengths used in many of the previous spectroscopic work on cells. The potential advantages of using mid-infrared light to interrogate cells for classification or sorting are numerous. They include very specific signatures, low photon energy, and direct measurement that potentially allow combinations of low optical power, fast measurement, and/or high precision measurement. Mid-infrared is an important range, since in this range, molecular vibrations may be measured directly through the use of absorption measurements. Essentially the same vibration signals that are measured using Raman spectroscopy are measured. Some major advantages of the mid-infrared range include that the absorption rate is much higher than in Raman, resulting in a significantly higher signal per input photon. Additionally, the photon energy used is extremely low compared to visible-light or even near-infrared measurements; this means no damage to cells or their components from ionization or two-photon absorption processes. Finally, molecular fingerprints in this range have been extensively characterized for decades using Fourier transform infrared (FTIR) spectroscopy [para 100]. Therefore, Wagner et al., teach the instantly recited claimed amendments.
Additionally, Ingham et al., teach direct analysis using laser scanning, especially rapid laser scanning methods, whereby the support surface is scanned to detect the microorganism or the reporter compound. It is well known that Laser Scanners emit a beam of infrared laser light. Ingham et al., clearly teaching an infrared light source (the laser scanner) and an image sensor, the light source being configured to emit an incident light wave at an infrared emission wavelength.
Moreover Ingham et al., teach the same alternative a reversible dye system where the reversible dye system with near-infrared (NIR) spectroscopy uses dyes that change their optical properties in the NIR region in response to an external stimulus. This change is reversible, allowing the system to switch between states. NIR spectroscopy is then used to monitor these changes by measuring the dye's absorption or fluorescence. Ingham et al., teach reversible dyes such as rhodamine, cyanine dyes and near infrared spectroscopy. Additionally, Wagner et al., teach infrared spectroscopy, image creation and image analysis. Therefore, Ingham et al., and Wagner et al., teach near infrared detection along with the necessary dyes as a means to characterize the development of a microorganism.
Thus, it would have been prima facie obvious at the time of applicants’ invention to apply Wagner et al’s infrared image sensor, wave length emission and light wave allowing image observation. Gazenko rapid detection and identification of colonies or micro-colonies of microorganisms after regular or short growth periods on light pellucid, molecule-permeable membranes installed on solid nutrient media to Ingham et al., method of microorganism characterization in order to provide rapid detection and identification of colonies or micro-colonies when Ingham et al., already teach the depositing step, the placement step.
New Grounds of Rejection Necessitated By Applicants Amendments
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.
7. Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ingham et al., (WO2006112713 published Oct 2006; priority to April 2006) in view of Wagner et al., (WO 2012068287 published 2012-05-24; priority to Nov 2011) and Gazenko (US Pat Pub 20100190204 published July 2010; priority to March 2008).
The claims are drawn to a method for characterizing microorganisms, the method comprising: (a) depositing microorganisms on a porous carrier, the porous carrier comprising a first face and a second face, and pores extending from the first face to the second face, the microorganisms being retained on the first face; (b) placing the porous carrier on the surface of a nutrient medium contained in a chamber, the porous carrier being placed such that the second face is placed in contact with the nutrient medium, so that the nutrient medium diffuses from the second face to the first face, through the pores; (c) moving the porous carrier with respect to the chamber; (d) positioning the porous carrier between an infrared light source and an infrared image sensor, the light source being configured to emit an incident light wave at an infrared emission wavelength, the porous carrier transmitting all or some of the incident light wave at the emission wavelength; (e) illuminating the microorganisms, placed on the porous carrier, with the light source and acquiring an the image sensor, at the emission wavelength of the incident light wave, the image allowing at least one colony of microorganisms to be observed; (f) characterizing the colony of microorganisms on the basis of the image acquired in the illuminating (e) and (g) repeating the illuminating, the microorganisms being successively illuminated at various infrared emission wavelengths, so as to obtain as many images as there are infrared emission wavelengths; wherein the characterizing (f) is performed based on the images acquired in the repeating (g).
Ingham et al., describe method which is particularly powerful for High Throughput Screening (HTS) purposes. More specific a high throughput method for determining heterogeneity or interactions of microorganisms is provided [abstract]. The phenotypic characteristics may be determined qualitatively (e.g. presence or absence of a feature) or quantitatively (e.g. length of cells). Ingham et al., involves the determination of the heterogeneity or of the interaction between the cells, microorganism or micro-colonies. This step involves the scoring of one or more phenotypic characteristics [Detailed Description].
Ingham et al., teach methods drawn to HTP method for determining the heterogeneity of a population of microorganisms, is provided. The method comprising the steps of: (a) contacting the microorganisms with a preferably rigid porous support, (b) incubating the support on a medium to allow cell growth, cell division (micro- colony formation) and/or cell differentiation of the microorganisms, (c) determining the heterogeneity of the microorganisms or micro-colonies (preferably without disturbing, or with minimally disturbing, the location of the microorganisms on the support), (d) optionally repeating steps (b) and (c) one or more times, and (e) optionally selecting one or more microorganisms [Detailed Description]. In step (a) the microorganisms, or the composition comprising these, are contacted with a porous support. The pores are important for allowing compounds, such as nutrients or reporter compounds to diffuse through the pores from underneath the support. At the same time, the pore size must be small enough so that the cells do not pass through the pores. Various supports which are suitable for use in the method are available in the art or can be made using known methods. For a specific embodiment of the porous support (or biochip, see below). Ingham et al., describes the porous medium comprising a first surface (21) and a second surface (11), and pores extending from the first surface to the second surface. See figures 5 and 7a-7c. In a preferred embodiment the porous supports are made of metal oxides. Such supports are already commercially available in the art, e.g. Anapore® inorganic supports (see e.g. WO 99/02266), which are available from Whatman [Detailed Description]. Metal oxide supports may be manufactured using methods known in the art, such as electrochemical etching of a metal sheet. Metal oxides include for example oxides of tantalum, titanium, and aluminum, as well as alloys of two or more metal oxides and doped metal oxides and alloys containing metal oxides. Other suitable supports may include minerals such as zeolites (microporous crystalline solids with well-defined structures with rigid fibrous supports or artificially created porous materials. Also hybrids between the materials noted may be suitable. One aspect of the invention is the use of a rigid, porous support as described above, and preferably a metal oxide support, in particular an aluminum oxide support such as Anopore®, for determining the heterogeneity of a population of microorganisms of the same or of different species [Biochips of the Invention]. Thus teaching claim 15.
Use of non-fluorescent redox dyes such as 2-(p-iodophenyl)-5- phenyltetrazolium chloride (INT) is also possible given the translucent nature of Anopore® allows transmission microscopy. It may be advantageous to combine this with other stains or counter-stains such as DAPI for detection of all cells by their nucleic acid content. Thus teaching instant claim 3. The porous support or a top layer of the porous support which layer has a certain thickness and which layer comprises a number of compartments (preferably at least 400 compartments per mm2) [Biochips of the invention]. Preferably in a regular pattern with repeating equal distances between the compartments. The compartments generally have micro or near-micro dimensions, i.e. the compartments generally have a height (depth) of 0.2-1000 μm, preferably 2-100 μm, and a diameter or a width and a length of about 0.5-250 μm, preferably 2-150 μm [Biochips of the invention] Thus teaching claims 14-15.
Starting population may initially be grown, for example in liquid culture, to increase the number of cells. Likewise, the starting population may be purified or partially purified using methods known in the art (for example by filtration or centrifugation or with a fluorescent activated cell sorter) prior to contacting the population with the support. The starting cells or microorganisms may be of a single species or of a mixture of species. Similarly, if the starting microorganism is of a single species, it may be of a single strain (e.g. single clone or strain) or it may be a mixture of strains [Detailed Description]. In step (a) the microorganisms, or the composition comprising these, are contacted with a porous support. The pores are important for allowing compounds, such as nutrients or reporter compounds to diffuse through the pores from underneath the support. At the same time, the pore size must be small enough so that the cells do not pass through the pores. Various supports which are suitable for use in the method are available in the art or can be made using known methods. For a specific embodiment of the porous support [Detailed Description], Thus teaching claim 1 and 8-9. Once the population of cells has been contacted with the support, the support is in step (b) incubated on a medium in order to allow cell growth, cell differentiation and/or micro-colony formation. The medium used may comprise one or more of the following: nutrients, minerals, other compounds such as chemical inducers or inhibitors of cellular processes, or in cellular energy metabolism or transduction, antibiotics or toxins, proteins or peptides [Detailed Description]; thus teaching claims 11-12. Measuring the parameters of cell length, cell number and micro colony area, comparing time 0 with 1 hour a significant increase all samples for all three parameters) was observed [Culture of Microorganisms]. Thus teaching claim 12.
The microorganisms being retained on the first surface [page 20, lines 27-31]; b) arranging the porous medium on the surface of a nutrient medium [page 33, lines 30-32] which is contained in a chamber. It is noted that the agar medium is commercially available within a plate; thus meeting the instantly claimed chamber limitation. The porous medium being arranged such that the surface is arranged in contact with the nutrient medium [page 33, lines30-32]. Thus the nutrient medium diffuses from the second surface to the first surface, through the pores [page 20, lines 27-31]. Ingham et al., describes c) moving the porous medium in relation to the chamber [page 34, lines 1-2]; d) positioning the porous medium between an infrared light source [page 36,lines 26-28] and an image sensor [page 34, lines 5-7]. The support surface may be examined. The rapid staining method does, therefore, not necessarily require cell fixation, which has the advantages that the cellular distribution is retained and that cells or sub-cellular components are not damaged. In one embodiment the reporter compound is a dye or luminescent compound (e.g. a fluorogenic or chromogenic compound) or a mixture of several compounds, may also be employed. Advanced uses of fluorescence dyes as above in such techniques as FRET or in vivo tracking of molecules is also envisaged [Detailed Description]. Thus teaching claim 10.
Thus "image analysis" of the support may be carried out ("image analysis" refers to the surface examination of the support surface, by a laser scanner or other apparatus scanning the support surface, which then in turn may produce images or any other output data, such as counts, etc.). Thus, in a preferred embodiment the support surface is analysed directly using laser scanning, especially rapid laser scanning methods. [Detailed Description]. Labelled cells may then be detected by laser scanning. The reporter compound is a dye or luminescent compound includes rhodamine, cyanine dyes (e. g.Cy5, Cy3), BODIPY dyes (e. g. BODIPY630/650) [Detailed Description]. Thus teaching a prominent example of a reversible, modified BODIPY in the 630/650 nm range. Alternatively, a reversible dye system, or other method of detection for example, the difference between aerobic and fermentative growth deduced from metabolites, by near infra red spectroscopy may be used [Detailed Description]. It is noted that Near-infrared spectroscopy is a spectroscopic method that uses the near-infrared region of the electromagnetic spectrum (from 700 nm to 2500 nm). 4000 cm-1 to 12,500-13,000 cm-1, which corresponds to approximately 800 nm to 2500 nm. Thus teaching claim 20.
Examples of fluorogenic or fluorescent dyes that can be used to gain useful information about the respiration of the target organism include oxocarbocyanine dyes (e.g. DiOC2) [Detailed Description]. Therefore Ingham et al., describes reversible dyes for use in near infrared spectroscopy. IR is generally understood to include wavelengths from around 780 nm to 1 mm. Ingham et al., describes in a preferred embodiment the support surface is analyzed directly using laser scanning, especially rapid laser scanning methods, whereby the support surface is scanned to detect the microorganism or the reporter compound [Detailed Description]. It is well known that Laser Scanners emit a beam of infrared laser light. Thus teaching an infrared light source and an image sensor, the light source being configured to emit an incident light wave at an infrared emission wavelength. Ingham et al., teach repeated measurements of a randomly chosen cell were made to assess the variability of the measuring technique [Examples]. Thus teaching claim 12.
The light source being configured to emit an incident light wave in an emission wavelength, the porous medium transmitting all or part of the incident light wave at the emission wavelength and e) illuminating the microorganisms, which are arranged on the porous medium, using the light source and acquiring an image using the image sensor, at the emission wavelength, the image allowing an observation of at least one colony of microorganisms (as illustrated in figure 5); f) characterizing the colony of microorganisms from the image acquired in step (e) [page3, lines 6-10]. The status of each cell within a microcolony is assessed and analyzed either at the level of the differences between cells in the same microcolony or between microcolonies, the interaction between adjacent cells. This information is used to assess the heterogeneity of a population.
This method allows cell-by-cell assessment of closely related cells (with a common ancestor within the microcolony) in a homogenous environment where changes in the gas phase are experienced extremely rapidly [Detailed Description]. Thus teaching claim 4. The support surface may be examined through a light microscope (e.g. light-, fluorescent-, or confocal- microscopy) or by surface plasmon resonance, conductivity, enzyme assays, mass spectrometry, etc.. Thus teaching claim 19. Thus "image analysis" of the support may be carried out ("image analysis" refers to the surface examination of the support surface, either by eye, e.g. through a microscope, or by a camera or laser scanner or other apparatus scanning the support surface, which then in turn may produce images or any other output data, such as counts, etc.). Thus, in a preferred embodiment the support surface is analyzed directly using laser scanning, especially rapid laser scanning methods, whereby the support surface is scanned to detect the microorganism or the reporter compound. Image capture used a Kappa CCD camera. TIFF files of 8-bit images were analyzed quantitatively using ImageJ software to implement background correction, median filtration, conversion to a binary image and measurement of colony or cell size. Images were merged and displayed using Photoshop 8.0 CS (Adobe) [Image Capture]. Thus teaching claim 7.
"Phenotypic characteristics" refer herein to any feature or combination of features (whether macroscopic, microscopic, molecular, biochemical, physiological) of the cells which is to be measured or assessed and which indicate the degree of heterogeneity between the cells or between (or within) micro- colonies, such as (but in no way limiting): cell or micro-colony sizes, shape(s), textures, ability to retain stains or dyes and/or colors; growth rate, viability, differentiation or behavior including motility, nucleic acid distribution; gene expression; protein (enzyme) production, changes in cell wall (including septation), capsule, membranes or other layer(s) surrounding the cell or structures protruding from the cell such as flagella or pili, metabolite production (e.g. folic acid levels) or aspects of energy transduction or consequences of metabolism such as changes in pH, changes in organelle or vesicle structure, secreted products including hormones and signaling peptides or quorum sensing autoinducers or nucleic acids or enzymes; mRNA levels (transcription of one or more genes); DNA or mRNA fingerprints; protein compositions, levels or activities; responsiveness to environmental factors; presence/absence or transfer of mobile genetic elements (transposons, viruses, plasmids, etc.); the (degree of) direct or indirect interaction between micro-organisms such as predation, formation of complex multicellular structures or communities (such as biofilms) that may be of the same or of different species, competition for nutrients, action of bacterocidins, release of signaling compounds that result in the formation of complex communities, adhesion, close cooperation between organisms including sharing of energy metabolism, etc. The phenotypic characteristics may be determined qualitatively (e.g. presence or absence of a feature) or quantitatively (e.g. length of cells) [Detailed Description]. Ingham et al., teach general microbiology teach rapid enumeration and detection or identification of organisms. Thus teaching claims 2, 5-7 and 16-17.
Wagner et al., teach in Infrared-Activated Cell Sorting (IRACS). The steps in an IRACS system may include prepare the cell sample; for each cell flowing through: illuminating the cell with mid-IR lasers, measuring the transmission of mid-IR wavelengths, and sorting cells by transmission levels. The key "input" parameters of the IRACS system model may be: cells per second entering the measurement volume; and spacing between cells ("duty cycle"). The input parameters may determine the measurement duration or integration time [para 92]. The wavelength may coincide with the regions for infrared spectroscopy, and with the wavelengths used in many of the previous spectroscopic work on cells. The potential advantages of using mid-infrared light to interrogate cells for classification or sorting are numerous. They include very specific signatures, low photon energy, and direct measurement that potentially allow combinations of low optical power, fast measurement, and/or high precision measurement. Mid-infrared is an important range, since in this range, molecular vibrations may be measured directly through the use of absorption measurements. Essentially the same vibration signals that are measured using Raman spectroscopy are measured. Some major advantages of the mid-infrared range include that the absorption rate is much higher than in Raman, resulting in a significantly higher signal per input photon. Additionally, the photon energy used is extremely low compared to visible-light or even near-infrared measurements; this means no damage to cells or their components from ionization or two-photon absorption processes. Finally, molecular fingerprints in this range have been extensively characterized for decades using Fourier transform infrared spectroscopy [para 100]. Advances of the measurement that accentuate differences between the cells to be sorted. For example, cells may be stimulated with temperature, light, fuel, or other stimulant to enhance biochemical concentrations that differentiate cells, for example, by differentially changing cell metabolism and therefore input or output products [para 114]. Wagner et al., describe in the visible or near infrared range of scattering or shape which may help determine cell type, and also measure agglomerates or vibrational optical measurements which may serve to quantify other biochemical constituents of the cell under inspection, including but not limited to measuring protein or lipid concentrations to determine the rough size and type of the cell, and detect cell agglomerates [para 119]. This disclosure may provide cell type, activity, or pathology [para 122].
FIG.14 depicts another embodiment in which the microfluidic chamber. Cells flow into this area where they may be measured using one or more QCLs and mid-IR detectors. Measurements may be performed either by translating the microfluidic chamber relative to the beam or moving the beam itself from cell to cell. The image processing system may locate cells and steer the QCL-derived beam onto them for spectral interrogation. The plurality of lasers may be imaged directly onto the microfluidic channel using appropriate optics [para 210].
Examples of this parameter may also include visible/NIR/SWIR (short wave infrared) light scattering from the cell, possibly indicating size and/or morphology. Examples of this parameter may include shape, size and density parameters calculated from imagery of the cell in visible/NIR/SWIR wavelengths. Examples of this parameter may include fluorescence signal from dyes or labels, such labels could include but are not limited to dye for assessing cell viability through membrane integrity, membrane-staining dye to measure overall membrane, antibodies attaching to specific cell types, and the like [para 274]. The laser array may be imaged onto the microchannel such that a series of volumes may be illuminated along the axis of flow. The transmitted portions of the beams may be then delivered to a mid-IR detector via one or more lenses. In this configuration, different points along the channel may be sampled by each wavelength/laser [para 355]. For example, in a cytometry system for measuring biological cells, a cell will pass through one beam after the next, causing different signals on the mid- IR detector. The changes in signal as the cell passes may then be processed, and chemical concentrations calculated. The individual lasers may be pulsed sequentially such that individual signals are easily resolved, they may be modulated with different frequencies or they may be used in continuous mode, and location of the cell inferred from the pattern of signals experienced as it may move through the channel [para 355].
FIG. 26b shows a configuration where an additional parameter besides DNA may be used to classify cells. In this case, the x-axis 2610 again represents the cellular DNA content. The y-axis 2612, however, represents another parameter measured by the system. Examples of this parameter may include, but are not limited to, secondary vibrational spectral measurement of the cell using the same technique but different wavelengths to determine for example, protein content, lipid content, sugar content, RNA content. Examples of this parameter may also include visible/NIR/SWIR light scattering from the cell, possibly indicating size and/or morphology. Examples of this parameter may include shape, size and density parameters calculated from imagery of the cell in visible/NIR/SWIR wavelengths. Examples of this parameter may include fluorescence signal from dyes or labels, such labels could include but are not limited to dye for assessing cell viability through membrane integrity, membrane-staining dye to measure overall membrane, antibodies attaching to specific cell types, and the like. Examples of this parameter may include quantum dot and other labels which function in a similar manner to fluorescent labels, though readout method is different. Examples of this parameter may include multiple other cell measurement methods known to those in the field. It should be noted that this is not restricted to one additional parameter. Wagner et al., teach multi-dimensional cell classification where cells would be classified using a combination of mid-IR wavelengths, potentially in combination with visible-light detection schemes [para 342].
Gazenko teach rapid detection and identification of colonies or micro-colonies of microorganisms after regular or short (several hours) growth periods on light pellucid, molecule-permeable membranes installed on solid nutrient media. Colonies or micro-colonies appearing on a membrane can be easily transferred from a growth plate to another media such as, pure agar or paper filled with indicator substances or substrates. Filterable and non-filterable samples can be analyzed by this method. A multitude of different methods of detection and identification can be realized using this invention in a micro-colony format: detection and enumeration of all live cells or specific live cells; detection and simultaneous identification of antibiotic-resistant microorganisms; different immunological methods of detection; detection and enumeration using machine analysis such as automated image identifiers [abstract]. device comprising: a container of media for providing nutrients to maintain growth of microorganisms; a porous element in contact with the nutrient media, wherein the porous element allows nutrient media to pass through it to maintain cell growth, the porous element is transferable from the container for subsequent processing with indicators or with visual inspection, and the porous element is pellucid, water-permeable, and permeable to nutrient substances and indicator substances [claim 1]. To allow the sample to be inoculated on the media or on the porous element, the porous element has a property that allows the liquid portion of the sample to be communicated through it downward in the container. Then, to promote growth of cells trapped from the sample, the porous element has a property that allows the nutrients from the media to be communicated through it to the cells. Next, to allow the cells to be processed with indicator, the porous element has a property that allows a biochemical indicator such as different dyes or antibody conjugates to be communicated through it to the cells, while maintaining cell and microcolony integrity on the porous membrane without dissolving or washing away the microcolonies. Finally, to allow the cells and microcolonies to be inspected, the porous element has a visual property of transparency [para 11]. In this case, plates can be used instead of the noted gels. Each plate consists of millions of small nanochannels, each with a diameter of 10 μm or less. Thus, labeled antibodies are thousands of times smaller than nanochannels and can freely move in liquid into the nanochannels from one side of the plate [para 31]. The indicators are substances that are able to specifically or non-specifically label microcolonies. They are chromogenic and/or fluorogenic substrates or their mixtures and labeled antibodies. Chromogenic and fluorogenic substrates produce light absorbent or fluorescent substances after a reaction with specific or non-specific enzyme, or a group of enzymes [para 32]. The term “detection” is generally understood to mean the ability to reveal and count/enumerate any microcolonies independently of their taxonomic classifications. “Differentiation” means the ability of a used method to differentiate two or more species from each other on the membrane by their shape, color, or wavelength/color of fluorescence. “Identification” means the determination of genus and species of a given microcolony. Detection needs only chromogenic or fluorogenic substrates. Differentiation is based on the differences in shapes or colors of microcolonies [para 33]. FIG. 2A, shows a container of agar media with multiple membranes , for parallel testing of a sample in a single container. The container can be a conventional Petri plate provided to house nutrient media that contains only substances that would not prevent or inhibit microbial growth in order to promote uninhibited growth of microcolonies for fastest response time on testing [para 37]. FIG. 4, shows a picture of a culture in a container of agar media having multiple porous elements thereon along with a separate secondary media for coloration is shown, in accordance with one embodiment of the present disclosure. Petri plate container of nutrient media with multiple porous element and a culture thereon illustrates the success of the microcolony growth in the growth stage as well as the clarity of the porous element and the ease of transfer of porous element to container in indicator stage with secondary indication media therein, which indicator clearly effectuates the darkened microcolonies, otherwise difficult to detect in the indicator stage of nutrient-only media container [para 45]. After processing with indicator material and processes, a final porous element with appropriately colored microcolonies may be visually observed and counted, e.g., under a light microscope or using an automated hardware and software image identification, recognition, and enumeration system with magnification [para 42]. Different kinds of image identifiers currently being used are based on CCD cameras and computer image identification programs and are combined with a microscope and computer to create an image and analyze it [para 59].
Therefore, it would have been prima facie obvious at the time of applicants’ invention to apply Wagner’s infrared light sensor and Gazenko rapid detection and identification of colonies or micro-colonies of microorganisms after regular or short (several hours) growth periods on light pellucid, molecule-permeable membranes installed on solid nutrient media to Ingham et al., method of microorganism characterization in order to provide rapid detection and identification of colonies or micro-colonies when Ingham et al., already teach the depositing step, the placement step. The moving step, the positioning step; the illuminating step; the characterization step and the repeating step to illuminate and obtain images. Additionally, optical measurements in the visible or near infrared range of scattering or shape which may help determine cell type, and also measure agglomerates or vibrational optical measurements which may serve to quantify other biochemical constituents of the cell under inspection, as taught by Wagner et al. One of ordinary skill in the art would have a reasonable expectation of success in assessing cellular growth rate, cellular division, formation, differentiation and/or metabolic activity and the like. Finally, it would have been prima facie obvious to combine the invention of Ingham et al., Wagner et al., and Gazenko to advantageously achieve a more efficient, cost-effective, accurate, and timely product and procedure to allow detection, identification and enumeration for microbes which provides allows cell-by-cell assessment where changes are experienced extremely rapidly. The mid-infrared detection, the transmitted mid- infrared wavelength light, wherein the transmitted mid-infrared wavelength light is used to identify a cell characteristic. This is a significant advantage over other known methods when combined with the potential for high throughput screening for microcolonies exhibiting desired properties.
Additionally, KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007), discloses combining prior art elements according to known methods to yield predictable results, thus the combination is obvious unless its application is beyond that person's skill. KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) also discloses that "The combination of familiar element according to known methods is likely to be obvious when it does no more than yield predictable results". It is well known to take a method of characterization where the steps are well known and routine and there is no change in the respective function of the components, thus the combination would have yielded a reasonable expectation of success along with predictable results to one of ordinary skill in the art at the time of the invention. It would have been obvious to a person of ordinary skill in the art to combine prior art elements according to known methods that is ready for improvement to yield predictable results. The claimed invention is prima facie obvious in view of the teachings of the prior art, absent any convincing evidence to the contrary.
Pertinent Art
8. The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The Laser Scanner emits a beam of infrared laser light onto a rotating mirror that effectively paints the surrounding environment with light. The scanner head rotates, sweeping the laser across the object or area. Objects in the path of the laser reflect the beam back to the scanner, providing the geometry that is interpreted into 3D data.
https://www.faro.com/en/Resource-Library/Article/understanding-laser-scanners
First, laser scanners emit infrared light waves that reach out and touch the surrounding surfaces. Objects in the laser path then reflect the light back to the sensor. The sensor uses this information to determine how far away the object is. This is called, “time-of-flight” measurement. The time-of-flight measurement is calculated for every surface of the object. A laser scanner can collect millions of data points in just a few seconds.
https://www.roboticimaging.com/blog/the-history-of-laser-scanning
Gong et al., developed a low-cost, near-infrared (NIR) reflectance confocal microscope (RCM) to overcome challenges in the imaging depth and speed found in our previously-reported smartphone confocal microscope.
Gong et al., Biomed Opt Express. 2019 Jun 21;10(7):3497–3505.
Conclusion
9. No claims allowed.
10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JA-NA A HINES whose telephone number is (571)272-0859. The examiner can normally be reached Monday thru Thursday.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Peter Paras, can be reached on 571-272-4517. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANA A HINES/Primary Examiner, Art Unit 1645
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